Professor D. Rosenbloom
March 29, 2020
You Can’t Know Until You’re Sued
An examination of the underlying inconsistency of qualified immunity in the United States
Justice Antonin Scalia’s criticism of the contemporary Court’s jurisprudence related to public administration is beyond fair. Although the majority strives to adhere to a judicial philosophy that combats the existence of prejudiced decisions by public administrators, the guidance they leave for practitioners of public administration is too flippant to be actionable in day-to-day work.
For the Supreme Court’s decisions to be more than intellectual exercises for elites or boons and banes for named parties, the precedent of the decisions must be useable by everyday public administrators. For the protection, or lack thereof, to be useful, public managers must understand it well enough to prevent them from making the wrong decision, before they make it. The Court’s goal is to ensure the Constitutional rights of individuals are not infringed upon, but the current shape of jurisprudence around public administration makes it difficult to know if a decision violates an individual’s Constitutional rights until someone has been sued.
Before digging into the failings of the Court to establish useful guidelines for daily public administrators, the Court should be recognized in one area in which they have successfully explained what is expected for and of public managers: qualified immunity for civil servants. Originally established in Harlow v. Fitzgerald, qualified immunity was created to balance the need for public administrators to exercise discretion without unreasonable fear of being sued with the need to hold public administrators accountable if they violate the rights of individuals.
This success, however, is limited and the extension of the established principles result in some of the most problematic failures of the Court to clarify useable standards. First, immunity, or lack thereof, for contracted persons carrying out the duties of the state. The Court was clear in defining in which cases civil servants could be sued in their personal capacity for the violation of the Constitutional rights of individuals. Harlow v. Fitzgerald, Hope v. Pelzer, and City of Escondido v. Emmons each follow in such a way that makes clear to civil servants what is expected of them, and what consequences they face for not abiding by such standards. Though one could argue that keeping up with the logical legal evolutions which apply to one’s job would be difficult for the average civil servant, the burden is far less than that of infringing on the rights of an individual and good public administrative systems will disseminate that information as is necessary. The high individualized cost of failing to keep up with the legal standards of a job also incentivizes even the civil servants who are most dismissive of legal happenings to understand what their responsibilities entail. Balancing the governmental interest of attracting top talent to public service with the interest of individuals, especially individuals held by the state, from having their constitutional rights violated has always been the difficult goal of qualified immunity.
In the modern age, significant amounts of governmental responsibility are contracted out, induced by either the ideology of ‘private does it better’ or more fundamental budget and capacity restraints. Faced with this reality in both West v. Atkins and Filarsky v. Delia, the court leans on the ‘bring people into the governmental workforce’ rationale for qualified immunity to extend immunity to Filarsky and holds Atkins is liable under 43 U.S. Code Section 1983 to continue to ensure those operating under the color of law do not violate constitutional rights. In both cases, contracted individuals doing work on behalf of the state are treated as civil servants in their responsibilities and privileges. It would make sense that this train of thought would be consistent with related cases and the correctional officers in Richardson v McKnight would have been able to claim qualified immunity, but that is not the case.
Whether or not the facts of the case would have found Richardson immune is a legitimate concern but is preempted by the Court finding that Richardson is not entitled to qualified immunity but is liable under Section 1893. This makes the ruling in Filarsky confusing to civil servants – are they or are they not entitled to qualified immunity? The most common reading would be that contracted individuals are entitled to qualified immunity but those who are employed by a contracted company are not. This gives rise to questions about self-employed individuals or situations in which the employees of the contracted company are technically subcontractors. The question is complicated when the vague concept of ‘entwinement’ is added to the mix and an individual does not even know if the company they work for is considered a state actor.
To further understand this important question, an examination of the difference between Correctional Services Corp. v. Malesko and Richardson v. McKnight show another concerning twist: the incongruency in the difference for state versus federal contracts. Though the facts of the cases are similar in principle, two prisoners treated unconstitutionally by correctional officers in a privately run facility, the Court holds that the correctional officer in Correctional Services Corp. v. Malesko is not liable under 43 U.S. Code Section 1983 while the correctional officers in Richardson v. McKnight are. Given that companies who operate in these fields operate federal, state, and local prisons, their employees could face changing constitutional tort liabilities and protections each time they are reassigned. Even the most astute civil servants would have a hard time understanding their exact duties and responsibilities in this maze of guidance.
Returning to the question of balancing, the standards applied to contracted employees seem to deviate from the intention of immunity. Recalling that the two purposes of creating qualified immunity are to a) attract talented individuals into the public workforce and keep them from being tied up in frivolous suits and b) to protect individuals from abridgment of their civil rights by governmental agents. The majority asserts that market forces in the private provision correctional services will balance the need for tough but not abusive practices because companies that are either too lenient or too harsh will lose their contracts and the private wages are high enough to compensate for the lack of immunity. The majority assumes that the marketplace for correctional services is competitive and that costs incurred for abusive practices will drive companies who don’t protect the rights of prisoners out of business. This is flawed on two accounts; first, the market is not competitive and, second, companies do have abusive practices despite the potential costs. The market for correctional services, like most markets for highly specialized services in the United States, is not actually competitive. Two private prison companies, GEO Group and CoreCivic account for 80% of the privately incarcerated. Though the movement away from private prisons has put increased pressure for high-quality low-cost service, today private prisons do not face the competitive pressures Justice Breyer wrote about in 1997. Additionally, private correctional officers are not compensated at higher levels to make up for their increased litigation risk. According to the Bureau of Labor Statistics reports that private correctional officers actually are paid between $6,000 and $9,000 less annually than public correctional officers. Though private prison companies do carry insurance that may protect their correctional officers from constitutional torts, the individuals are not being compensated for the increased risk as Justice Breyer wrote in Richardson v. McKnight. Both of these assumptions on which the majority rests their case for inconsistent treatment of correctional offices have failed to hold up to today’s reality.
Addressing the protection of individuals from the abridgment of their constitutional rights, the Court’s aim has always been to protect the constitutional rights of individuals. The court was clear that qualified immunity would prevent substantial abuses because the immunity was in fact heavily qualified. In cases such as Pembaur v. City of Cincinnati, the Court made clear that officers of the law should think twice before engaging in actions which could possibly open them up to suit under 43 U.S. Code Section 1983. Correctional Services Corp. v. Malesko does the opposite by specifically refraining from extending the §1983 remedy to federal contractors. One section of the prison population, those held in private federal facilities, now encounters correctional officers who need not worry about being sued under §1983. By the Court’s original logic, that population is not shielded from abuse in the same way all other incarcerated persons are, disrupting the underlying judicial philosophy. This frightening conclusion has come to fruition with heart-wrenching injuries and unjust conditions frequently suffered in federal private prisons.
Comparing the dissents from each of these two cases demonstrates that the shifting majority on the Court is struggling to assert consistent guidance. Justices Scalia and Thomas dissent in Richardson v McKnight, arguing that the Court is treating two nearly identical entities very differently:
“Today’s decision says that two sets of prison guards who are indistinguishable in the ultimate source of their authority over prisoners, indistinguishable in the powers they possess over prisoners, and indistinguishable in the duties they owe towards prisoners, are to be treated quite differently in the matter of their financial liability.”
On the more Liberal wing, Justices Stevens, Souter, Ginsburg, and Bryer dissent in Correctional Services Corp. v. Malesko, arguing that this opinion also treats two nearly identical entities very differently:
“Permitting liability in the present case, however, would produce symmetry: both private and public prisoners would be unable to sue the principal (i.e., the Government), but would be able to sue the primary federal agent (i.e., the government official or the corporation). Indeed, it is the Court’s decision that creates asymmetry–between federal and state prisoners housed in private correctional facilities.”
The Court is not directly contradicting itself in these cases as the specifics of the case vary enough for technical consistency, however for the common civil servant this web of niche applicability of laws and precedents creates an unnavigable maze of standards. Qualified immunity was always a balancing act, Justice Powell identified qualified immunity as “the best attainable accommodation of competing values” in his 1981 writing of the opinion of the Court in Harlow v. Fitzgerald. However, the Court has added so many counterweights to the original balance that few understand which way the scale tips.
As a student of a master’s program dedicated to training public managers, taking a class that specifically looks at the constitutional requirements on public administrators, I still do not have a clear view of what I, as a future public manager, should do in constitutionally questionable situations. I am in the position as one of the best-prepared people who may become a public manager; If I have trouble understanding how the jurisprudence of the supreme court compels me to act, people who have far less training and far less care for the constitutionality of their actions have little chance of making the proper decision in difficult situations. Most public administrators will never encounter such difficult situations and most cases which this course has studied could be avoided by public managers simply by acting more compassionately. When it comes to the rights of Americans enshrined in a revered document, we should hope for more than a good guess made by good people.
 Jan, Tracy, and Renae Merle. “Wall Street Pulled Its Financing. Stocks Have Plummeted. But Private Prisons Still Thrive.” The Washington Post, WP Company, 3 Oct. 2019, www.washingtonpost.com/business/2019/10/03/wall-street-pulled-its-financing-stocks-have-plummeted-private-prisons-still-thrive/.
“Private Prison Execs Continue to Make Much More than Guards.” Prison Legal News, HUMAN RIGHTS DEFENSE CENTER, 6 July 2016, www.prisonlegalnews.org/news/2016/jul/6/private-prison-execs-continue-make-much-more-guards/.
 Markowitz, Eric. “Making Profits on the Captive Prison Market.” The New Yorker, The New Yorker, 19 June 2017, www.newyorker.com/business/currency/making-profits-on-the-captive-prison-market.
Dominic Gatti and Eryn Greaney
Dr. Patrick Malone
April 7th, 2020
Public Health and Regulatory No Man’s Land
Tobacco is one of the leading public health threats around the world, killing more than eight million people a year (“Tobacco”). Specifically, more than seven million of the deaths are due to direct tobacco use, while 1.2 million are from non-smokers being exposed to second-hand smoke. Furthermore, 80 percent of the 1.1 billion smokers around the world live in low-income countries, where the burden of tobacco-related death is higher. Tobacco use exacerbates poverty and inequities as it has the potential to shift household spending priorities, as nicotine is extremely addictive. The burden of high costs from tobacco use evident in the economy, particularly with health care costs (“Tobacco”).
Electronic nicotine delivery systems (ENDS) have rapidly grown in popularity among youth in America. Based on the 2019 National Youth Tobacco Survey there are disturbing rates of ENDS use among middle and high school students in America (Center for Tobacco Products). More than 5 million youth reported using e-cigarettes in the last 30 days. ENDS have reduced the decline in tobacco products among youth in America. The statistics from this survey are alarming, nearly 1 million youth use the product daily and 1.6 million reported frequent use. The rapid rate of ENDS use among youth is extremely concerning. Products with high levels of nicotine place youth at risk for nicotine dependence and can negatively impact brain development (Center for Tobacco Products).
Though a vape is a relatively simple machine, it goes by a variety of names. The most formal name for the device known as a vape, and the one this paper will use, is an ‘electronic nicotine delivery system’ or ENDS, which is precisely the function of the device. Originally invented in Beijing in 2003 and first exported to the U.S. in 2006, the basic components of an ENDS are a battery, a tank to hold the vape liquid, the liquid itself, and an atomizer, which is a small device which contains a metal coil which heats and turn the liquid into an aerosol (“Understanding Vape Coils and Atomizers”). The original ENDS was a single, self-contained disposable unit that resembled a cigarette, and those were aptly called ‘e-cigarettes’. Growth in popularity and a desire for customization gave rise to larger, boxier, modified devices which were largely called vapes, as they no longer resembled cigarettes. The most recent innovation has been sleek, pod-based systems which have a reusable body and disposable cartridges which contain the liquid and easily snap into place; as Juul was the first major player on that scene their name stuck, and most pod-based devices are colloquially called “Juuls” though there are many variations on the market today. The use of each of these devices has its own name, correspondingly: puffing/smoking, vaping, and Juuling/hitting.
In the early summer of 2019, ENDS regulation was brought starkly into the public eye when there was a sudden surge of otherwise healthy people showing up at hospitals with acute pulmonary distress. These people had inflamed lungs, serious damage to their avioli, and in some cases, fibrinous pneumonia (Wolf et al.). As serious cases popped up all across the country and deaths began to mount, the main commonality was that all of the users had reported using ENDS. A national scare ensued and anti-vaping advocates seized the opportunity to push flavor bans state by state, and a proposal even made it to the president. However, as the research played out, it was found that the culprit was a compound called vitamin E acetate, the harmful product of vaporizing the usually beneficial vitamin E oil – a product that is impossible to use in ENDS devices due to its high viscosity. The numerous hospitalizations and deaths were caused not by nicotine vapes, rather counterfeit THC cartridges known as “Dab Pens”. Though the CDC downplayed the distinction, the FDA acknowledged that ENDS were not at fault and publically declined to move forward with restrictions on ENDS, though they have been met with congressional scorn for the decision (“Durbin Lights up on Proposed FDA e-Cig Rule”).
The Food and Drug Administration (FDA) was not always responsible for regulating tobacco and tobacco-derived products. Before 1994, the FDA adamantly denied that they had authority over regulating tobacco products because they did not consider it a drug and believed that it was not within their mission to regulate tobacco as any use of it was unsafe. In 1994, the FDA drastically changed course and classified nicotine as a drug (Cimons). At the time, there was still a vigorous debate about whether or not nicotine was addictive. The FDA classifying nicotine as a drug was an extraordinary change of events. It, of course, came with significant pushback; in 1996 when the FDA first tried to regulate cigarettes as a device that delivers the newly classified drug, nicotine, they were sued by Brown & Williamson, a tobacco giant. Brown & Williamson argued that the FDA did not have statutory authority to regulate tobacco products absent medical or therapeutic claims (“FDA v. Brown and Williamson”). The case made its way up to the Supreme Court in 2000 where the majority ruled 5-4 that the FDA did not, in fact, have statutory authority to regulate tobacco as Congress had considered and enacted separate measures that dealt specifically with tobacco products outside of the Food, Drug, and Cosmetics Act (FDCA) which had created the FDA and gave it its statutory authority.
In 2007, ENDS manufacturers Smoking Everywhere and NJOY started importing ENDS into the U.S. The FDA denied entry of a shipment of Smoking Everywhere products from China under the rationale that the devices were an “unapproved drug-device combination” (Tilburg et al, 56). The FDA took action again as they denied a shipment of NJOY items based on a similar rationale. As a result, Smoking Everywhere filed suit and NJOY joined as a plaintiff. These companies did not want the FDA regulating their products under the drug/device provisions of the FDCA. The ENDS manufacturers argued that the ruling from FDA v. Brown & Williamson should be applied to ENDS. Winning an injunction against the FDA’s seizure and an appeal, the ENDS manufacturers were allowed to operate free from FDA regulation (Sottera Inc. v. FDA).
In response to the Supreme Court’s decision in FDA v. Brown & Williamson, mounting scientific evidence, and with single-party Democratic rule in Washington, Congress passed The Family Smoking Prevention and Tobacco Control Act of 2009 which explicitly gave the FDA authority to regulate Tobacco products and codified the 1996 regulations which deemed cigarettes to be delivery devices of the drug nicotine. In a show of the compromise nature of this bill, both the tobacco giant Phillip Morris and the Campaign for Tobacco-Free Youth endorsed the legislation. The Tobacco Control Act gave the FDA authority to regulate the manufacturing, distribution, and marketing of tobacco products, including specific restrictions on the marketing of tobacco products to youth (Tilburg et al, 54). This landmark legislation for tobacco products opened a new chapter in the battle for regulation around not only tobacco products but also tobacco derivatives such as ENDS liquid products.
After spending nearly 14 years in legal battles fighting for their authority, the FDA had little to show for their efforts. Their opponents’ strategy to legally question the FDA’s authority forced them to reckon with the limited nature of their creation and the especially tricky policy area ENDS fits into. Trapped in a cycle of being challenged and losing authority to regulate has put the FDA on the ropes and beguiled public administrators into a strictly legal perspective of public administration. Though a comprehensive understanding of the legal basis for the administration’s authority is important for public administrators at the FDA as it should guide their mission and decisions when it gets in the way of fulfilling the mission it has become a hindrance to the execution of crucial governmental functions.
In 2014, the FDA exercised its authority under the 2009 Tobacco Control Act to ‘deem’ ENDS as tobacco products. The Tobacco Control Act only named cigarettes, but it gave the FDA authority to deem other tobacco or tobacco-derived products as under their jurisdiction and promulgate rules regulating them. As the vast majority of nicotine present in ENDS liquids is derived from tobacco leaves, the FDA exercised its deeming power over ENDS without significant pushback. As explained by a brief written by William Tilburg, Kathleen Hoke, and Mellissa Sager at the University of Maryland Public Health Law center,
“The Deeming Rule is a foundational rule that authorizes the FDA to regulate all products derived from tobacco. The rule also triggers specific requirements and restrictions for tobacco manufacturers and retailers. All newly deemed tobacco product manufacturers must register with the FDA and report product and ingredient listings; only market new products after FDA review; not make reduced risk claims without scientific data and FDA approval; not distribute free samples; and pay user fees. In addition, retailers may not sell tobacco products to individuals under 18 years of age and must check ID for anyone appearing to be under 27 years of age; vending machine sales are prohibited except in adult-only facilities.” (Tilburg et al, 60)
These new requirements served as the basic set of rules for ENDS manufacturers, though the details exempted them for multiple years if they had filed ‘substantially similar’ exemption applications. The Office of Management and Budget approval process removed both flavor bans and premarket approval for ENDS from the regulation which the FDA originally promulgated. Though the deeming of ENDS as tobacco products imposed significant new rules, the deeming made clear that this was the base of FDA regulation, not the limit.
Understanding the failure of the legal approach, the FDA has begun and must continue to turn and utilize a balance of the political and managerial approach to ensure the health of Americans. The revamping of the administrative approach is not a speedy process, but the FDA has been taking deliberate steps to a more hands-on approach to regulating ENDS. The 2014 Deeming Rule took effect in 2016 which implemented some provisions immeadlity. Most notably, the minimum age of 18 for ENDS purchase, a ban on free samples, and a requirement for premarket approval for any new devices introduced after August 8th, 2016 (McDonald). Premarket approval for ENDS on the market at the time of the rule’s enactment were granted waivers for sale as long as they had filed the paperwork necessary for approval. This decision was the first step in transitioning from legal approach to a managerial one, with the FDA paying heed to the needs of its engaged constituent – ENDS manufacturers and sellers. When Commissioner Gottlieb took over the FDA in 2017 he brought a new, proactive approach to dealing with ENDS regulation. Showing this newfound prioritization of efficiency in health promotion, Commissioner Gottlieb posed a question at a June 2017 press conference:
“If we lean in on nicotine regulation wholeheartedly, how do these compliance policies fit into our overall goal? In a world where FDA is pursuing how to regulate nicotine levels in cigarettes, and combustible cigarettes are one day far less addictive, we can take the time to make sure we have in place the foundational elements of a robust and sustainable framework for regulating the non-combustible forms of nicotine delivery. That means extending further some of the current compliance deadlines for newly deemed products, primarily electronic cigarettes, and cigars, that were previously extended. All of the requirements for newly deemed products that have already gone into effect will continue to stay in force. In a world where there is no mandated reduction in the levels of nicotine in noncombustible products, our compliance policies should account for changes that will move addicted smokers down that continuum of risk to these less harmful products.” (Gottlieb)
Gottlieb turned the focus of regulation to creating a comprehensive plan to improve the health of smokers which included ENDS (Clarke). Commissioner Gottlieb pushed back the premarket approval deadline to 2022 in order to give the FDA and the industry time to create a workable solution to premarket approval.
However, this emphasis on the managerial approach, stressing service to constituents and efficiency in results, did not last. In late 2018, the FDA released the results from its National Youth Tobacco Survey (NYTS) which found that more than a quarter of high school students had used an ENDS in the past 30 days (“Youth and Tobacco Use”). Though there is debate about the straightforwardness of the FDA’s claim, the headline dominated major news outlets and Commissioner Gottlieb proclaimed ENDS use among youth to be an epidemic (Wilson). The FDA again pivoted, this time away from a level headed managerial approach and to an energetic political approach, riding the waves of outrage articulated by anti-smoking organizations such as the American Lung Association (Mercure). The coalition which had combated tobacco consumption for years seized on two key events to push for much stricter regulation, including a flavor band; first the FDA’s designation of youth nicotine use as an epidemic and then the following year’s appearance of acute lung disease supposedly related to ENDS use. Directly in line with the political approach, this strong coalition of concerned parents, high school administrators, and legislators pressured and turned the FDA’s focus away from risk mitigation for current smokers to a zealous attack on all ENDS in the name of youth at-risk for nicotine addiction. The ENDS manufacturers, sellers, and users who had been working closely with the FDA less than a year earlier suddenly felt the icy chill of being the out-group once again.
The statistics reported about the rate of youth ENDS use and the information put out by the Centers for Disease Control and Prevention is clearly alarming (“Youth and Tobacco Use”). This is where it is critical to have public administrators involved throughout the process within governmental agencies. “Public administrators are faced with difficult choices every day, concerning ethical decisions. Ethical considerations are paramount to public administrators since they exercise great discretion in influencing and implementing policy decisions that either benefit or harm impacted parties” (Hijal-Moghrabi, 472). Furthermore, promoting integrity restores public trust in the government, which enhances its administrative capacity (Denhardt). Overall, this would lead to better leadership to effectively carry out each agency mission, leading to the optimal function of the government.
Regulatory Approach’s Impact on Outcomes
Tobacco has always been an area of public interest with input from public health groups, the medical field, the tobacco industry, and constituents; the managerial approach and direction can be lost in the field of politics. Many voices share their opinion on this topic whether its medical advice, public health organizations, the tobacco industry, or someone’s personal experience. Companies, organizations, and people all have varying opinions, which has the potential to influence decisions. The private sector and the non-profit sector influence the public sector. Rosenbloom et al. state that “non-profits may be necessary to achieve specific government goals” (130). In the case of ENDS regulation, organizations like the American Lung Association and Campaign for Tobacco-Free Kids have a large impact on regulatory decision making. Citizen participation has a major impact on the decisions the government makes. Rosenbloom et al. describe citizen participation as a form of advocacy from outside the government that is a “long-standing feature of public administration in the United States (…) and can be directly built into administrative decision making” (197).
Citizen participation can hold a heavyweight in the political sphere, but it is crucial for public administrators to maintain a sound mind when implementing change. This is particularly important when it comes to the regulation of ENDS, as they have a direct impact on a person’s health. Woodrow Wilson would argue that there should be a balanced dichotomy between politics and administration, in order for the government to function effectively. The outsized influence nonprofits, like the American Lung Assn., have on the decisions of regulatory agencies, like the FDA, infused politics into the business of governing. Woodrow Wilson would disagree with this relationship as he views public administration as a “field of business” (as cited in Rosenbloom et al., 15). Where public administrators draw the line for political influence is not a simple decision, and the pervasive culture impacts such decisions.
State and federal coordination has contributed to uncertain regulations with tobacco control and regulation. One essential aspect of the 2009 Tobacco Control Act was the explicit preservation of local authority to impose more stringent control measures (Tilburg et al, 69). The explicit promotion of federalism as described by Wright in “Intergovernmental Relations: An Analytic Overview” is effective for local control of an increasingly hot-button topic, but has created a maze of geographic regulations which are increasingly difficult for ENDS manufacturers and sellers to navigate. In the increasingly interconnected marketplace, consistent standards and regulations are important, especially when addressing public health. When Chicago raised the age of purchase for all tobacco products (which included ENDS) to 21 ahead of the rest of the country, their efforts were dampened by easy access to stores located just outside city limits where the legal age was still 18. While such a system promotes constitutional values and a healthy landscape of laboratories for democracy, the effectiveness of public policy is severely undercut. To add to this confusion, the seemingly fluid priorities of the FDA complicate the efforts of state regulators. If the FDA is going to promptly raise the age for sale or ban flavors and enforce it, then the state level public administrators need not spend their far scarcer resources on those activities. However, if the FDA does not plan to make and enforce rules which local governments believe to be necessary, they shouldn’t waste any time rolling out their desired policies. Predictability and reasoned consistency are essential traits of any government entity, lack of those characteristics hobble reputation and effectiveness.
Federal and state collaboration was seen during the time of investigating respiratory illnesses allegedly related to ENDS products (Sharpless). A joint statement was made from the FDA Commissioner and the CDC Director in response to the alarming rates of respiratory illnesses reported. Coordination and cooperation from both agencies was necessary to understand the effects of ENDS on the health and well-being of Americans. They relied on state and local health officials to investigate these incidents as they were the experts on the ground. In this instance, it is evident how critical intergovernmental relationships are to coordinate effectively working together. Additionally, the need for federal and state collaboration is necessary to paint a full picture of the reality of the problem on the ground. This collaboration shows the importance of federal-state relations in the field of public administrations. Rosenbloom states, “Federalism requires coordination and cooperation along two major dimensions. One is between the national government and state governments; the other is between or among states” (125). In this case, the FDA, CDC, and state and local health officials needed to work together to address a nation-wide scare.
Congress has acted on legislation that put forth stronger laws to regulate ENDS and tobacco among youth in America. This is a perfect example of how the federal government is organized to jump in when there is a gap in what is needed. Recently, the House of Representatives passed monumental tobacco regulation legislation called the Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act of 2020. This bill takes a comprehensive approach to address the youth tobacco epidemic. This bill includes provisions that would affect the FDA in tobacco regulation (“House Passes Reversing the Youth Tobacco Epidemic Act of 2019”). Specific provisions related to this agency include requiring the FDA to finalize its rules mandating graphic health warning labels; extend regulations on the sale, distribution, and use of all deemed tobacco products; and instruct the FDA to regulate products containing nicotine whether or not it is derived from tobacco (“House Passes Reversing the Youth Tobacco Epidemic Act of 2019”). This shows the political approach to public administration coming into play. The House of Representatives passed stronger laws that would impact the FDA and how they regulate tobacco products. The public was concerned with the magnitude of the teen vaping epidemic as it revealed gaps in the way the FDA regulates tobacco products. When no action was taken, Congress stepped in. Even though the bill has not passed the Senate and the President stated he would veto this bill, it sets forth ideas on how the FDA can better regulate tobacco.
Reorganization for the Good of Public Health
As alluded to by the pre-1994 FDA stance of non-regulation, tobacco products are not in the FDA’s natural wheelhouse. Examining the FDA’s mission statement, there is a clear break between the traditional role of the FDA and its tobacco regulation powers:
“The Food and Drug Administration is responsible for protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, and medical devices; and by ensuring the safety of our nation’s food supply, cosmetics, and products that emit radiation.
FDA also has responsibility for regulating the manufacturing, marketing, and distribution of tobacco products to protect the public health and to reduce tobacco use by minors.” (Office of the Commissioner)
The original argument against the FDA regulating tobacco was that no use of tobacco products could ever be sanctioned by the FDA because it is necessarily adverse to public health. The FDA is a health promotion authority, but tobacco products are not healthy. Though ENDS manufacturers and retailers argue convincingly that they do not make or sell tobacco products, federal law still considers them as such. Regulation of tobacco products should be another authority but in lieu of creating a tobacco bureau, the FDA must fulfill its goal of keeping Americans safe.
If there was a separate agency that would be solely responsible for tobacco it could lead to better regulation of tobacco products. Moving tobacco regulation out of the responsibilities of the FDA could lead to a more streamlined, unified approach to the regulation of tobacco in the U.S. It could also lead to specialized employees, better coordination within the agency, and division of labor. All of these aspects are critical for an agency to effectively and efficiently carry out its mission. Weber describes the division of labor as coordinating activities to meet the needs of citizens (as cited in Rosenbloom et al., 149). The creation of a separate tobacco regulation agency could lead to better coordination with other agencies involved with tobacco in the U.S. It is evident from the statistics from the National Tobacco Youth Survey that there is a public need for an agency devoted solely to tobacco use.
As often is asked of public administrators, an impossible task befalls the FDA. To ensure the health of the public by in some way permitting the use of a substance that is in no way in the benefit of public health is a paradox. However, the difficult position may be an opportunity for the FDA to delineate the risk mitigation potential of ENDS from the unredeemable cigarette.
The most effective way to make up for the early failure of effectively regulating ENDS would be to move regulatory responsibility out of the FDA and into an authority that can effectively manage the needs and pressures of tobacco regulation. The FDA’s mission to ensure that products on the public markets are safe is necessarily contradicted by any kind of peritmance of tobacco on the market. The unique position of ENDS to be a cure to the problems faced by smokers must be taken into account and either retained by the FDA or given special status by a new tobacco authority. A new tobacco authority should prevent youth from becoming addicted to nicotine by strictly enforcing age restrictions; niceties like fun flavors and sleek designs help current smokers switch to a less harmful alternative, and will not addict new users on their own. Children cannot get addicted to nicotine if they can’t get access to it. Companies who try to circumvent these goals, like Juul advertising to teens, should be punished severely but making life-extending products unavailable to those who can legally obtain them is against the goal of any government who cares about the health of its people. The world of vapor devices is rapidly expanding with products that use the basic components for ENDS to turn THC, melatonin, CBD, or caffeine into an aerosol, and the FDA is still best positioned to regulate these products. What makes ENDS special is the ‘N’ in the acronym: nicotine. Nicotine has not been found to have any medical benefits and therefore should not be regulated under the FDA unless it is through the lens of smoking cessation.
The creation of a center for tobacco products would create an opportunity for specialized employees working directly with regulating tobacco products in the U.S. Having subject matter experts would create the environment for efficient regulation of tobacco products. Employees would be more familiar with the variety of health impacts, advertisements, and the development of new products. The creation of a tobacco center would eliminate all of the controversy the FDA experienced in the 1990s.
This approach has been shown to work in another major western nation, the United Kingdom. ENDS came onto the market at approximately the same time. Instead of seizing shipments and battling in court, the Medicines and Healthcare products Regulatory Agency (the U.K.’s FDA) embraced ENDS as a smoking cessation device and promoted it to smokers while keeping it out of the hands of children. Their imposition of limits on nicotine concentration at 20 milligrams per liter would likely not be well received in the U.S., but a similar, managerial approach, would reprioritize the health of smokers and free up precious resources needed at the FDA.
The President’s 2020 budget included a measure that would make the Center for Tobacco Products, currently an office within the FDA, an independent authority within HHS (Hellmann). This would address the concern that the FDA is not well situated to regulate tobacco products. By moving tobacco regulation out of the FDA, it may be better regulated. In President Trump’s budget proposal he included a shift in oversight of tobacco products out of the FDA and create a new agency under the Department of Health and Human Services. The President’s proposal states; “a new agency with the singular mission on tobacco and its impact on public health would have a greater capacity to respond strategically to the growing complexity of new tobacco products” (as cited in Hellmann). The director of the agency would be confirmed by the Senate. Furthermore, the reorganization would allow the FDA to focus on the safety of food and medical supplies. Through the creation of the tobacco-specific agency it might lead to more effective and efficient tobacco regulation.
Despite the well-intentioned proposal to create an independent Center for Tobacco Products within HHS, the FDA will likely be responsible for regulating tobacco and tobacco-derived products for the foreseeable future. This should prompt the FDA to consider their historic approach and evaluate other approaches that may be more useful to their goal of promoting public health. Understanding that the creation of a tobacco regulation agency is unlikely in the current political environment, the FDA must continue transitioning their approach away from one dominated by legal principles and to an approach consisting of level headed managerial concern for public health and limited political influence.
Center for Tobacco Products. “Youth Tobacco Use: Results from the National Youth Tobacco Survey.” U.S. Food and Drug Administration, FDA, 18 Nov. 2019, www.fda.gov/tobacco-products/youth-and-tobacco/youth-tobacco-use-results-national-youth-tobacco-survey.
Cimons, Marlene. “Key FDA Panel Finds Nicotine Is Addictive.” Los Angeles Times, Los Angeles Times, 3 Aug. 1994, www.latimes.com/archives/la-xpm-1994-08-03-mn-22990-story.html.
Clarke, Toni. “U.S. Proposes Cigarette Nicotine Cut, Shift toward e-Cigarettes.” Reuters, Thomson Reuters, 28 July 2017, www.reuters.com/article/us-fda-tobacco-regulation/u-s-proposes-cigarette-nicotine-cut-shift-toward-e-cigarettes-idUSKBN1AD1VW.
Denhardt, R. B., & Denhardt, J. V. (2000). The new public service: Serving rather than steering. Public Administration Review, 60(6), 549–559. doi:10.1111/0033-3352.00117.
“Durbin Lights up on Proposed FDA e-Cig Rule.” POLITICO Pro, POLITICO, 24 Apr. 2014, subscriber-politicopro-com.proxyau.wrlc.org/article/2014/04/durbin-lights-up-on-proposed-fda-e-cig-rule-032153.
“Food and Drug Administration v. Brown & Williamson Tobacco Corporation.” Oyez, www.oyez.org/cases/1999/98-1152.
Gottlieb, Scott. “Comprehensive Approach to Nicotine and Tobacco.” Speeches by FDA Officials , U.S. Food and Drug Administration, 28 June 2017, www.fda.gov/news-events/speeches-fda-officials/protecting-american-families-comprehensive-approach-nicotine-and-tobacco-06282017?utm_campaign=ctp-728regplan&utm_content=speech&utm_medium=social&utm_source=CTPPartnerTwitter&utm_term=gov.
Hellmann, Jessie. “Trump Administration Proposes Removing FDA’s Authority over Tobacco Regulation.” TheHill, The Hill, 10 Feb. 2020, thehill.com/policy/healthcare/482345-trump-administration-proposes-removing-fdas-authority-over-tobacco.
Hijal-Moghrabi, I., & Sabharwal, M. (2018). Ethics in American Public Administration: A Response to a Changing Reality. Public Integrity, 20(5), 459–477. https://doi-org.proxyau.wrlc.org/10.1080/10999922.2017.1419053.
“House Passes Reversing the Youth Tobacco Epidemic Act of 2019.” Latest in Cardiology , American College of Cardiology, 28 Feb. 2020, www.acc.org/latest-in-cardiology/articles/2020/02/28/14/56/house-passes-reversing-the-youth-tobacco-epidemic-act-of-2019.
McDonald, Jim. “The Deeming Rule: A Brief History and Timeline of the FDA’s Vaping Regulations.” Learn, Vaping360, 11 Feb. 2019, vaping360.com/learn/fda-deeming-regulations-timeline/.
Mercure , Michelle. “American Lung Association Offers Hope and Help to the Youth Vaping Epidemic.” Each Breath, American Lung Association , 29 Aug. 2019, www.lung.org/blog/youth-vaping-epidemic.
Office of the Commissioner. “What We Do.” U.S. Food and Drug Administration, FDA, www.fda.gov/about-fda/what-we-do#mission.
Rosenbloom, D. H., Clerkin, R. M., & Kravchuk, R. (2015). Public administration: understanding management, politics, and law in the public sector. New York: McGraw-Hill Education.
Sharpless , Norman. “Statement on Federal and State Collaboration to Investigate Respiratory Illnesses Reported after Use of e-Cigarette Products.” Press Announcements, U.S. Food and Drug Administration, 30 Aug. 2019, www.fda.gov/news-events/press-announcements/statement-federal-and-state-collaboration-investigate-respiratory-illnesses-reported-after-use-e.
“Sottera Inc. v. U.S. Food and Drug Administration/Smoking Everywhere, Inc. v. U.S. Food and Drug Administration.” Public Health Law Center, Mitchell Hamline School of Law , 11 Oct. 2015, www.publichealthlawcenter.org/content/sottera-inc-v-us-food-and-drug-administration.
Tilburg, William, Kathleen Hoke, & Mellissa Sager, FDA Regulation of Electronic Nicotine Delivery Systems and the “Deeming” Rule: What’s Left for States?, 20 J. Health Care L. & Pol’y 27 (2017).
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“Understanding Vape Coils and Atomizers.” Cali Steam’s School of Vape, Cali Steam, 25 Feb. 2018, calisteam.com/blogs/school-of-vape/understanding-vape-coils-and-atomizers.
Wilson, Clare. “Why Concerns of a Teenage Vaping Epidemic May Be Overblown.” Health, New Scientist, 31 Jan. 2020, www.newscientist.com/article/2232126-why-concerns-of-a-teenage-vaping-epidemic-may-be-overblown/.
Wolf, Molly, and Laura Rock. “EVALI: New Information on Vaping-Induced Lung Injury.” Harvard Health Publishing, Harvard Medical School, 4 Apr. 2020, www.health.harvard.edu/blog/evali-new-information-on-vaping-induced-lung-injury-2020040319359.
“Youth and Tobacco Use.” Fast Facts and Fact Sheets, Centers for Disease Control and Prevention, 10 Dec. 2019, www.cdc.gov/tobacco/data_statistics/fact_sheets/youth_data/tobacco_use/index.htm.
Current Event Article Write Up
Dr. Patrick Malone
Failure of Government Contracting Meets Critical Need
The New York Times
The U.S. Tried to Build a New Fleet of Ventilators. The Mission Failed.
March 29, 2020
In 2006, the Department of Health and Human Services (HHS) created a new division called “Biomedical Advanced Research and Development Authority” whose mission was to “prepare medical responses to chemical, biological and nuclear attacks, as well as infectious diseases.” In 2007, a panel of experts from the new division created a set of standards for a next-gen ventilator to fill the national stockpile with. It emphasized mobility, ease of use, and low cost. In 2008, a small Californian company called Newport Medical Instruments won the contract and began working on the project. In 2011, Newport sent 3 working prototypes to Washington and they were received with much excitement. In 2012 a senior HHS official testified before Congress that the program was on schedule to go to full-scale production in September of 2013, which would mean the U.S. would have a massive stockpile of easy to use, ready to deploy ventilators – exactly what we need right now.
In May of 2012, Newport was bought by the large medical device company called Covidien and the relationship between the government and the manufacturer instantly changed. It went from the top priority treated with honor by the small company to an annoying side project by the larger company. Mangers were moved away from the project and suddenly it was not feasible without additional investment. Health officials and industry professionals suspect that the project suddenly went to the chopping block because Covidien knew a successful cheaper alternative would undermine the traditional, high-cost high-profit machine. In 2014, Covidien sought to end the contract, not having delivered any ventilators, complaining that the venture was not sufficiently profitable. The government agreed and started the contract awarding process over again, this time choosing Phillips, a large Dutch medical device company. Phillip’s ventilators were approved to go to production in July of 2019 and a 10,000 unit order set an initial delivery date of mid-2020, a little too late for our current crisis.
This article sadly encapsulates the worst-case scenario of the contracting relationship that was discussed in last week’s budgeting article, “Complex Contracting: Management Challenges and Solutions.” The initial governmental initiative was crucial and forward-thinking, but when the government turned to an outside contractor an element of risk was added. A brand-new design of mobile, low-cost ventilator is the exact kind of product Brown and Potoski warn could fail if it is seen as a simple item rather than the complex product it is. The initial contract was undertaken with mutual respect for the project, but since it was interacting with the private market the unforeseen roadblock of an acquisition derailed the project.
It is unsurprising that the government did not feel they had the capability or the role of manufacturing this ventilator but putting critical healthcare needs in the hands of the private sector inherently runs a risk. It is unfortunate, as a gross understatement, that the contract failed without enough time to recover before this fatal pandemic.
Critical Analysis Essay
March 24th, 2020
Government – Non-Profit Relationships
Spending and Government Provision of Public Services
Not-for-profit organizations (herein called nonprofits) have existed in the United States since the YMCA was founded in 1851 (originally founded in London in 1844). Their numbers grew substantially after the popularization of wealthy individuals giving away their fortunes spurred by Andrew Carnegie’s 1889 book, Gospel of Wealth. Enacted in 1954 under President Eisenhower, section 501(c)(3) of the U.S. tax code provides tax exemption for the majority of the organizations that come to mind when the word “nonprofit” is mentioned. To be clear, there are 29 subsections of the 501(c) section and numerous additional sections that provide various kinds of tax exemptions. However, the park-supporting charities studied in Cheng’s article are 501(c)(3)’s and therefore they will be the focus of this essay.
Nonprofits serve many functions that are essential to maintain a civilized society and to support their efforts, governments provide grants to help sustain their operation. In fact, most large nonprofits today would not be able to operate without governments’ financial support. Because of this unidirectional funding flow, the majority of public administration literature focuses on the impact of governmental action/inaction of nonprofits. This has given rise to two prominent theories of government-nonprofit relationships: the supplementary model and the complimentary model. The supplementary model[i] of government-nonprofit relationships assumes that nonprofits fill in where government fails – though this idea is not entirely congruous with an economic view of public goods, the model views the operation of nonprofits in providing a ‘public good’ such as education or park enhancement which the government does not provide due to median voter constraints[ii]. An important feature of the supplementary model is the inverse relationship[iii] between the governmental and nonprofit spending on a given public good or service. The complementary model[iv] has a direct relationship between governmental and nonprofit spending on a given public good or service[v]. This model focuses on the fact that governments give grants to nonprofits to do work in areas which the government cares about. Those grants both direct and finance nonprofit operations so that both public and private money work in tandem to achieve the adequate provision of a good or service.
Yuan Cheng writes that each of these two theories fail to encapsulate the more dynamic relationship which exists between governments and nonprofits. The first crack in the supplementary/ complementary models is the phenomena of nonprofits advocating (in the laymen’s sense of the word) for the government to spend its resources in a certain way. In models that see nonprofits as either reacter to governmental decisions or inert organizations animated by governmental funds, it makes no sense for the respondent organization to try to influence the actions of its precursor, the government. The second crack in the supplementary/complementary models comes from the classical social science model of critical mass theory[vi] where action must pass a threshold of participants before a social movement explodes into being. This theory intersects with governmental-nonprofit relationships where the outpouring of support for a public good/service after action by a nonprofit prompts the government to more substantially support said good/service. A prime example of this phenomenon is the shift in governmental funding to greater support for Central Park in New York City after the nonprofit Central Park highlighted what adequate park spending could do for the park. This is a good example of a non-linear relationship between governments’ spending and nonprofit spending on a particular good or service, as explained by Cheng, where a nonprofit increases governmental spending on a good/service by creating public support for said good/service. The resultant ‘two-way’ theory more accurately explains the dynamic between governments and nonprofits.
Takeaway for Public Admin and the General Public
Though debating which theory best describes the true relationship between governments and nonprofits may seem like the exclusive interest of academics and grantors/grantees, the nature of the governmental-nonprofit relationship should be of concern to all. The economic definition of a public good is one that is non-excludable and non-rival, and for those reasons, will never be produced in the private sector and must instead be produced by the government. However, the public administrator and the public, in general, see a much broader range of goods and services which they would consider public, such as education, low-income housing, food banks, and park creation and maintenance. Both public and private entities engage in these services, so the dynamic of how they come about must be understood.
The most important thing for public administrators to understand from this article is the collaborative potential between governments and nonprofits. Deil Wright wrote extensively about the relationships between governmental relations at different levels[vii] and building off his work the in-class lecture[viii] stressed the importance of the relationships between governmental offices. Remembering that offices are held by people, a collaborative work model can extend from governmental offices the individuals in nonprofits. This realization opens the potential for two lines of collaboration:, one stemming interpersonal aspect of collaborative federalism[ix], and the second from the dynamic relationship explored in Cheng’s article. The combination of a two-way interpersonal and influence relationships gives public managers an exceptional opportunity to do synergetic work with nonprofit partners.
A healthy relationship with the nonprofits in a public administrator’s mission area opens the potential for government dollars to have the large, precise impact the government desires while empowering friendly partners to advocate for the issue area in ways a public administrator cannot, such as spurring displays of support and influencing elected officials. Even in contexts where direct communication or collaboration is not feasible, market signaling could serve the interests of public managers and nonprofits alike. Through budgetary justifications, governmental public media, and nonprofit published ‘calls to action’, cooperative action can be coordinated using the two-way theory.
Though there is great potential for positive relationships to be built and synergetic work to be done, the dynamic can also sour with disastrous effects. In the traditional models, governments were the broadcaster of action and had no need to consider the feelings of those who ran or supported nonprofits. With the two-way model, public administrators must carefully steward their relationships with figures in the nonprofit community surrounding their mission area to ensure productive uses of governmental funds and nonprofit efforts. If there is an adversarial relationship, then the worst of both worlds could come about – diminished impact of governmental funding and an absence of nonprofit collaboration.
For the public, the most important thing to understand from this article is the potential for synergetic work to be done around issues they care about. In the supplementary model of governmental-nonprofit relationships, individuals who cared deeply about a specific issue had to first see if the government at each of the three levels – local, state, and federal – funded relevant agencies and programs to carry out the desired action. If the government neglected to fund that area, they had to either create or fund an organization which would then provide the desired good or service. In the complementary model, an interested constituent would again have had to wait and see if the government funded the area of concern. That constituent would need to ensure there was an appropriate organization ready to receive funds from the government, if the government chose to do so, and would be out of luck if the government chose not to fund that specific area. While both traditional theories severely handicap an interested person’s range of action, the two-way theory provides far more hope. An active individual has the ability to influence governmental spending by activating existing nonprofits (or even starting their own) to spur broader public support. This finding provides the public with more avenues to bring attention to the issues they care about and should inspire active individuals to influence the direction of governmental funds through this more detailed understanding of governmental-nonprofit relationships. Real change is in the reaches of a nonprofit with even modest means if there is real support among the community.
[i] Young, Dennis R. 2000. Alternative models of government–nonprofit sector relations: Theoretical and international perspectives. Nonprofit and Voluntary Sector Quarterly 29:149–72.
[ii] Weisbrod, Burton Allen. 1977. The voluntary nonprofit sector. Lexington, MA: D.C. Heath and Company
[iii] Smith, Stephen Rathgeb, and Kirsten A. Grønbjerg. 2006. Government–nonprofit relations. In The nonprofit sector: A research handbook, 2nd ed, eds. Walter W. Powell and Richard Steinberg, 221–42. New Haven, CT:
Yale Univ. Press.
[iv] Young, Dennis R. 2000. Alternative models of government–nonprofit sector relations: Theoretical and international perspectives. Nonprofit and Voluntary Sector Quarterly 29:149–72.
[v] Salamon, Lester M., and Helmut K. Anheier. 1998. Social origins of civil society: Explaining the nonprofit sector cross-nationally. Voluntas: International Journal of Voluntary and Nonprofit Organizations 9:213–48.
[vi] Oliver, Pamela, Gerald Marwell, and Ruy Teixeira. 1985. A theory of the critical mass. I. Interdependence, group heterogeneity, and the production of collective action. American Journal of Sociology 91:522–56.
[vii] Wright, Deil S. “Intergovernmental Relations: An Analytic Overview.” Classics of Public Administration, by Jay M. Shafritz and Albert C. Hyde, Wadsworth Cengage Learning, 2012, pp. 344–358.
[viii] Malone, Patrick. “Intergovernmental Relations and Federalism.” PUAD-612-001. 12 Feb. 2020, Washington D.C.
[ix] John C. Morris, William A. Gibson, William M. Leavitt, Shana C. Jones, Collaborative Federalism and the Emerging Role of Local Nonprofits in Water Quality Implementation, Publius: The Journal of Federalism, Volume 44, Issue 3, Summer 2014, Pages 499–518, https://doi.org/10.1093/publius/pju019
Click Link to Open PDF:
CLEG Seminar Final
December 12th, 2019
For Efficiency Today and Sustainability Tomorrow
How energy imbalance markets can usher in renewable generation and increasing grid-wide efficiency
The benefits of renewable electric power generation are well applauded, with little to no carbon emissions, few negative operation externalities, high energy efficiency, and increasing price competitiveness. Most major fossil fuel companies have seen the writing on the wall and have made significant investments in alternative energy production. Though many see these movements as not swift enough and the changes are not coming fast enough to see an impact on carbon emissions, there are difficulties in actually using renewable power.
Bringing new power plants online is not as simple as plugging it into a giant reverse outlet. As various energy markets bring in more sustainable generation plants, they are faced with a new problem; overgeneration – too much power at times when it is not needed. The issue lies in the fact that the wind and sun cannot be turned on and off. This leads to overgeneration, especially during sunny mid-day times and windy nights when demand for electricity is low. As more intermittent renewable generation units are brought online without the retirement of baseload generators (renewable or non-renewable), there is a higher supply of electricity in the market. Since baseload generators must be run at least at their minimum operational levels those renewable generators get curtailed when there is a glut of electricity on the market.
At times grid operators will post negative costs to increase consumption to meet supply, an obvious inefficiency in the market. Adding to the troubles, depending on the power purchasing agreements, when the generators are curtailed some are not paid for the electricity they produce, undercutting the increasingly competitive price per megawatt-hour and again reducing grid-wide efficiencies.
Several solutions have been floated, including increasing battery storage, decreasing baseload generation, and increasing the size of the market. Increasing battery storage would allow the intermittent generation sources to produce at their maximum at all times, putting any unneeded electricity into storage to be deployed at peak hours. Though the same strategy can be used for any kind of generator, this is a particularly useful strategy for renewable sources because of their near-zero marginal costs. Recent advances in battery technology and new companies advertising unorthodox storage methods give hope to large scale storage projects to stabilize the input of intermittent renewable sources to the grid. Increased prevalence of negative electricity prices would make it even more lucrative to expand storage capacity because these storage companies would be paid to intake electricity, then be paid again to put that stored energy back into the grid at peak times. However, these innovations in battery technology are not currently at deployable scale and should not be solely relied upon to counteract the issue of overgeneration.
A radical approach to dealing with overgeneration is removing baseload generation. Baseload generation ensures a constant supply of energy onto the grid, but because it is not dispatchable it also runs when it isn’t needed. This is due to the minimum operation requirements of coal, nuclear, biomass, and natural gas generation techniques.
The reason they experience these operational minimums is much like how campers control the size of their bonfire; once the bonfire is lit the campers can increase the size by adding more fuel or decrease the size by starving the fire for fuel, but if they let the bonfire go out completely it takes a lot of time to restart the fire. Power generation operators must keep their power plants on so they can ramp up generation quickly when more electricity is demanded.
Those who propose eliminating base generation argue that renewable intermittent sources can supply all the energy communities need without the problems of constant generation. The assertion is not entirely realistic and is usually supplemented with modern natural gas plants that have much lower operation minimums.
The most effective way to help ease overgeneration would be to implement or expand energy imbalance markets (EIMs). By enlarging the market in which electricity is bought and sold, the operators have access to a more stable average supply and more avenues of demand, allowing them to more efficiently balance the market. Having large energy imbalance markets hedges against some of the common criticisms of intermittent energy sources because adverse conditions (e.g. excessive clouds or lack of wind) are less likely to affect renewable energy production across the entire market as the size of the market grows. Broad geographic areas also allow for the specialization of regions to their power-generating strengths; windy planes can power hilly regions and expansive deserts can power rainy regions.
The biggest physical barrier to implementing EIMs is the need for cross-market transmission lines – wires which run long distances carrying electricity between disparate generation and consumption sites. Though it is not easy to transmit electricity over long distances, the technology exists to lay superconductive wires transnationally, or use direct current transmission into major energy ports and disperse useable alternating current electricity from there. To remove this barrier, the Department of Energy could begin to build these lines or hubs themselves and allow energy companies to pay a fee to supply to or demand from them. Once the physical barriers are removed, there is still the issue of accessing the various regional markets across the United States. To solve this, the Department of Energy or a group of pragmatic states / regional authorities could put together an open market plan which would allow for the connection of energy markets. The best existing framework comes from the Western EIM which covers most of the Pacific time zone. Both the physical connection of transmission lines and the connection of the energy markets would be huge undertakings, but there are a number of forces pushing in the right direction.
Those groups most obviously opposed would be those who currently enjoy low electricity prices due to frequent overgeneration and energy producers who fear they would not be able to compete in a larger market. The status quo always has a lot of staying power, but the forces in support of large energy imbalance markets are strong and growing. Businesses and consumers who are pushing for a greater proportion of their energy to be sourced renewably, utilities who desire more consistent energy prices, renewable generators who would benefit from fewer curtailments, and increased economic efficiency overall. A concerted effort from either the Department of Energy or a group of pragmatic governors, combined with current technological innovation and public sentiment, would be able to implement large scale EIMs.
Creating large EIMs bypasses the largest communications attacks on renewable energy adoption because these expanded markets make it less likely that the intermittent renewable generators are all affected by adverse conditions. There is also room for the use of fossil fuels, especially highly dynamic natural gas generation. A uniting theme that advocates could promote would be American energy independence. When the country can freely trade electricity from coast to coast, Americans can provide all the energy they need with sustainable methods. For example, a sunny afternoon in the Southwest can power Northeastern dinnertime and the windy nights of the Mid-Atlantic and Midwest can power the West Coast’s evening activities.
One legal question raised by astute critics of EIMs regards the long-term power purchasing agreements signed by generators and utilities or companies. Since generated electricity is contractually committed to be bought and sold on timetables often longer than a decade, being cautious of entering into markets that are not necessarily a part of what a generator or purchaser has agreed to could be dangerous territory. However, this has not been an issue in the implementation of the Western EIM and seems to have been avoided for two main reasons. First, once the responsibilities of the contracts have been fulfilled, the generators and buyers are still permitted to engage in other transactions and since EIMs operate on sub-hourly time scales, there is flexibility to engage in EIMs and still meet the long-term agreement standards. Second, the organizations that operate EIMs, known as system operators, are non-profit public utility organizations that do not have an interest to undercut or undermine power purchasing agreements.
The worldwide effort to decarbonize the modern economy is a complicated but necessary process with many countervailing forces. As energy generation accounts for 28% of American carbon emissions, the decarbonization of the energy sector is a massively important step in combating climate change. Creating and expanding energy imbalance markets is the best way to simultaneously deal with overgeneration, give market forces the space to elevate the status and penetration of renewable energy generation sources. This policy can make electricity delivery cheaper, more reliable, and more economically efficient. Significant barriers stand between the current system and a nation-wide efficient electricity market, but the barriers are that of untaken action rather than opposition. Policymakers in the energy sector cannot control the broader debate about decarbonization or the pace of technological innovation, but they can pave the way for efficient use of whatever comes next.
As part of my Political Research class, I, along with my partner for the project Kevin Weil, looked at stop-and-frisk policing in Washington D.C. We were selected to present our research at the Lab @ DC, a division of the Mayor’s office. Of the work below, Kevin Weil did most of the background research and I did most of the data analysis and concluding. Attached immediately below is the PDF printout of our report, the PDF printout of the code I wrote, and the presentation we gave to the Lab @ DC.
Where Does the Issue Lie? Stop-and-Frisk Policing in Washington D.C.
An Analysis of Washington D.C.’s Stop-and-Frisk Policing Practices
Dominic Gatti and Kevin Weil
GOVT 310: Introduction to Political Research
Dr. Ryan Moore
ABSTRACT: Terry stops, or stop-and-frisk policing, is a controversial method used by police officers that has been extensively researched. This project seeks to supplement research that strongly establishes the disproportionate effects of the practice on minority demographics, specifically Black communities. Ultimately, our research comes to replicate these findings within Washington D.C. However, after introducing ShotSpotter data provided by the MPD, this study finds that D.C. MPD patrols areas that have a high frequency of potentially violent crime. Under the assumption that the frequency of gunshots has a relationship to violent crime, our study concludes that, overall, MPD methods of policing are not discriminatory but that the way in which MPD practices stop-and-frisk is individually discriminatory to Black residents.
KEYWORDS: Police Stops; Racial Bias; Criminology; Terry Stops; Stop-and-Frisk.
In the 1990s, criminal justice became a prominent national issue as rising crime rates concerned politicians and lawmakers. Fearing being labeled as “soft on crime,” policymakers endeavored to craft laws that would reflect tough legal stances that enforced the rule of law. A definitive and controversial policing method of this time, Terry stops (commonly known as “stop-and-frisk” policing) emerged as a practice that attempted to curtail the rising national crime rates. The practice adopted temporary detention and investigation of suspects based on reasonable suspicion rather than the perpetration of a crime or a warrant.
The legality of stop-and-frisk was affirmed in the Supreme Court case Terry v. Ohio (1968), which established the authority of police officers to stop a suspect and search for weapons and contraband including narcotics, drug paraphernalia, and other objects deemed reasonably suspicious. Though suspects may be stopped for one reason, any incriminating contraband found otherwise can be used to against the suspect.
Stop-and-frisk programs are widely understood as controversial. Despite the practice being constitutional since 1968, stop-and-frisk programs recently gained prominence under New York City Mayor Giuliani’s administration. The New York City Police Department (NYPD) used stop-and-frisk practices under the validation of the broken windows theory, a criminological theory that suggests cleaning up visible signs of petty crime like loitering, vandalism, and prostitution will ultimately prevent serious crimes. Police officers in New York City focused primarily on crime-prone areas, particularly neighborhoods like the Bronx and Harlem. NYPD received aggressive responses from organized civil liberty groups like the New York Civil Liberties Union (NYCLU), LatinoJustice PRLDEF, and The Bronx Defenders regarding their aggressive policing techniques. These groups alleged that the NYPD’s stop-and-frisk program was inherently discriminatory and filed a class action suit in federal court, Floyd v. City of New York (2013).
Floyd v. City of New York ruled that the NYPD’s use of stop-and-frisk was unconstitutional due to its discriminatory practices. However, this ruling did not overrule the constitutionality of Terry stops. In fact, Mayor Giuliani’s successor Michael Bloomberg defended the legality of the practice, citing its effectiveness and ultimately decided appeal Floyd. This appeal was subsequently dropped by Mayor Bill de Blasio in 2014 who has disavowed and mostly eliminated the use of stop-and-frisk.
Despite the controversy over New York City’s stop-and frisk-program, Washington D.C.’s Metropolitan Police Department (MPD) implements its own policing program with its own stop-and-frisk practices. The MPD’s methods, however, have not been extensively studied as the NYPD’s, only recently releasing data in early 2018.
Prior Studies Conducted on Stop-and-Frisk
Given the controversial nature of stop-and-frisk practices, there have been several studies that measure its effect on communities and crime rates. The general consensus among these studies find that stop-and-frisk practices disproportionately affects minority residents as opposed to White residents. Arguments have been made that defend the effectiveness of stop-and-frisk as a practice that is employed proportionately to racial composition. These assumptions were taken into account in a 2007 study published in the Journal for American Statistical Association published by Gelman, Fagan, and Kiss. This study analyzes the practices of the NYPD’s pedestrian stops (as opposed to traffic stops) through disaggregating police stops by precinct to measure stop rates by racial and ethnic groups, controlling for race-specific crimes. The study, moreover, used a hierarchical model to illustrate precinct variability, ultimately finding after controlling for these variables, Black and Hispanic individuals were stopped more frequently than Whites. Essentially, this study took raw data provided by the NYPD on their policing methods that broadly described Black and Hispanic residents as being more frequently stopped than White residents. After controlling for demographic proportions, Gelman et al. were able to confirm this observation, finding that Black and Hispanic individuals were stopped twice as often as White individuals; alternatively, the study also found that White and Hispanic individuals were stopped more frequently than Blacks for nonviolent issues relating to property or drugs.
Our report will be on Washington D.C.’s MPD stop-and-frisk practices, which will complement the research completed by August Warren, Mahkah Wu, and Mika Weinstein. These researchers recently published a statistical study that measures the racial inequity of D.C.’s stop-and-frisk practices. Warren, Wu, and Weinstein come to find D.C. police practices reflect similar findings to the ASA study. According to this study, Black individuals were the target of 80% of police stops from 2010 to 2017. Further, it finds a strong linear relationship between a neighborhoods average crime rate and the measured stop-and-frisk incidents. Rather than examining the specific reasons that certain individuals were stopped (which our own research accommodates for), this study examines the breakdown by D.C. wards, neighborhoods, Police Service Areas. These results are also complemented by D.C. Census tract data.
Warren, Wu, and Weinstein contributed to the extensive research on the NYPD’s stop-and-frisk program in applying their models to Washington D.C. There has not, however, been extensive studies that have analyzed MPD’s stop-and-frisk practices beyond this study. More research on the MPD’s methods is necessary as they show no sign in limiting its use of the practice. The data needed to complete this has recently been provided under the D.C. council’s Neighborhood Engagement Achieves Results Amendment Act of 2016 or the NEAR Act.
Our research will explore the following questions: (1) is Washington D.C.’s MPD stop-and-frisk practices inherently discriminatory against Black residents and (2) is D.C.’s MPD patrolling areas based off of racial composition or off of criminal activity?
Though it has been overwhelmingly established that stop-and-frisk practices are somewhat discriminatory towards minority demographics, our research seeks to add another dimension with these findings. Further, this study uses different data than what has been used in the study conducted by Warren, Wu, and Weinstein. The specifics of this data set will be explored in the “Data” section of this report. What is unique about our study is our inclusion of “ShotSpotter” data from MPD’s database which allows us to more accurately illustrate the relationship between racial demographics and police activity via recorded gunshots by D.C. MPD.
Stop-and-Frisk and MPD Data
Our study focuses on three main data sets and one SHP file containing geographic information. Each of these raw data files can be found on D.C.’s Open Data database on the city’s government website. The three data files we used were Stop_and_Frisk_Contact, Stop_and_Frisk_Incident, and Shot_Spotter_Gun_Shots, respectively assigned as “contact,” “incident,” and “shot.” Further, we used Police_Service_Areas.shp for our geographical analysis and some demographic data. This allowed our findings to be contextualized by not only MPD district, but also more accurately Police Service Area.
The data set labeled “contact” contains the information of individuals who were approached for a stopped-and-frisk in Washington D.C. The data set holds 13 variables and spans from 2013 to 2016. Our study focused primarily on the race of individual reports and the “reason for stop” for each stop-and-frisk interaction recorded. The reasons are listed as follows: Call for Service, Community Policing, Equipment Violation, Juvenile Contact, Moving Violation, Pre-existing Knowledge, Prostitution-free Zone, Registration Violations, Special Detail Checkpoint, Special Investigation, Suspicious activity, Suspicious persons, Suspicious vehicles, Truancy/Curfew, or Other. Further, we added a variable called “Black” to the data frame in order to compare the proportion of people stopped who were Black within each “reason-for-stop” level. In total, there were 7,837 reported stop-and-frisks in this data set, with 83% of the observations being Black individuals.
The data set labeled “incident” contains reports from 2010 to 2016. It contains 13 variables, but describes specific details regarding reported stop-and-frisk incidents specifically race: American Indian or Alaskan Native, Asian, Black, Native Hawaiian Or Other Pacific Islander, White, or Unknown. This data set contained 23,325 reported stop-and-frisk incidents with 82% of the observations being Black individuals. What is unique about this data set is that it also included the Police Service Areas in which these stop-and-frisk incidents had taken place. We used the frequency of stop-and-frisk incidents within each of the Police Service Areas in conjunction with a manipulation of the “shot” data to draw conclusions about how MPD was choosing to patrol areas.
Figure 1: This bar graph illustrates the proportion of stop-and-frisk reports per Police District (100-700) and by Police Service (1-9 per every 100). Police Service Area 2 (200-209) reports the least amount of stop-and-frisks (with the exception of the National Mall) and includes most of Northwest D.C., notably Georgetown, Glover Park, Tenleytown, and Kalorama. Alternatively, Police Service Area 6 (600-609) reports the highest stop-and-frisk rates in Washington D.C.. It includes the Southeast region east of the Anacostia river, namely Fort DuPont, Lincoln Heights, Marshall Heights, and Deanwood. Police Service Areas 1, 3, and 7 similarly yield high frequency of stop-and-frisks of Black residents, spanning from regions on along the Southeast water edge of the Anacostia and Potomac Rivers as well as neighborhoods around U Street, Shaw, and Mount Vernon.
The data provided by the MPD that reports detected gunshots contains the latitudinal and longitudinal location of where a potential gunshot was reported, as well as the time it was recorded, and whether it was a single gunshot, multiple gunshots, or a noise accredited to either a single gunshot or the explosion of a firecracker. Overall, there are 28,343 reports. This data is used in this study to complement the stop-and-frisk reports in an attempt to show a relationship between stop-and-frisk frequency, race/ethnicity of the individual stopped, as well as the potential for a Police Service Area to be perceived as crime-prone.
Methods and Models
The first statistical analysis we did was looking at the proportion of Black people in each reason-for-stop group. We executed this by finding the proportion of Black individuals in each reason-for-stop group, calculating the standard error, and from there the 95% confidence interval. Using a looping function, we printed the upper and lower limits for each reason-for-stop. Our null hypothesis was that the proportion of Black individuals in each reason-for-stop group would be .471, the proportion of Blacks in the District as a whole. This null hypothesis asserted that people would be stopped at the same proportion that each racial group existed in D.C. If this were to be true there would be no discrimination among the reasons-for-stop, basically a random sample of D.C. for each reason.
To complete our second analysis we looked at the proportions of shots recorded and stop-and-frisk incidents recorded in each district. We ran two linear regressions. First, of the difference between the proportion of shots recorded in a PSA and the proportion of stop-and-frisk incidents in that PSA on the proportion of population who was Black. Our null hypothesis was that the difference between the proportions of shots recorded and incidents recorded would not be correlated by proportion of Black residents, meaning stop-and-frisk targeting was not influenced by the proportion of Black residents. Second, the frequency of stop-and-frisk incidents on the proportion of population who was Black. Our null hypothesis was that the there would be no correlation between proportion of Black residents and the proportion of stop-and-frisk incidents that occured in that PSA.
The true population of Black residents in Washington D.C. is about 47.1% (2017). When looking at the confidence intervals for each of the reasons-for-stop we find that only one contains that 47.1% true proportion. With the exception of “Special Detail Checkpoint,” Figure 2 (below) displays that individual MPD stop-and-frisks disproportionately affect Black individuals as 15 of the 16 of the reasons provided do not, with a 95% confidence, include the true proportion of Black residents. We reject the null hypothesis and assert that the reason-for-stop shows discriminatory targeting of individuals for Terry stops. This findings support the general findings the ASA report and local results from the GitHub blog post that minorities are disportionately targeted by stop-and-frisk practices.
Figure 2: Illustrated above are confidence intervals detailing the reason for a reported MPD stop-and-frisk of a Black individual.
Examining our first linear regression, the difference between shots and incidents on proportion of Black population which is Black, we find a confidence interval that does not contain zero (0.028, 0.053) and a that the shots increases per population by a rate of about .04. We reject the null hypothesis in favor of the alternative: there is a correlation between the proportion of Black residents and the difference in stop-and-frisks. However the direction of that correlation surprised us. Because we calculated our difference using [shots – incidents], the positive correlation implies that as the proportion of Black residents increased, there were was a higher proportion of shots than the proportion of incident.
Examining our second linear regression, the frequency of stop-and-frisk incidents on the proportion of population who was Black, we find that we fail to reject a null hypothesis and conclude that there is be no correlation between proportion of Black residents and the proportion of stop-and-frisk incidents that occured in that PSA. Our confidence interval (-44.77, 301.22) contains zero.
Figure 3 and 4: Illustrated above are linear regression tests. Figure 3 describes the relationship between the difference between gunshots reporting and stop-and-frisk incident that targeted Black individuals and the proportion of Black individuals per PSA. Figure 4 describes the frequency of stop-and-frisk incidents involving Black individuals and the proportion of Black residents per PSA.
Limitations of Data and Assumptions
The three largest limitations of our data are differences in time frames among our data sets, the uncertainty of possibile of firecrackers being mistaken for gunshots in our ShotSpotter data, and the discretionary nature of reporting.
First, our three main data frames – contact, incidents, and shots – all spanned different time ranges. As already noted in the previous section, the incident data reports from January 1st of 2010 to December 31st of 2016 while the contact data reports stop-and-frisks from January 1st of 2013 to November 9th of 2016. Moreover, the ShotSpotter data reports from January 1st of 2014 to December 31st of 2017. This study also assumes that MPD automatically recording a gunshot and does not influence the frequency and distribution of those gunshots. The proportions used to compare the two statistics, therefore, is limited only by the size of the smaller sample, which has 22,952 observations. Further, our report also assumes that the frequency of gunshots has a relationship to the crime rate of a given Police Service Area. This being said, critiques concerning changes in policing practices and changes in the demographic makeup of areas between 2010 and 2014 are legitimate.
Second, the ShotSpotter data frame has three levels: “Multiple_Gunshots”, “Single_Gunshot”, and “Gunshot_or_Firecracker”. There is a chance that some of the observations were not actual gunshots; however, this study is comfortable interpreting an ambiguous report within the ShotSpotter data as a gunshot because it makes up only 8% of the data and would be reasonably interpreted by a police officer as a possible gunshot and worthy of investigation.
Lastly, our analysis assumes that all police reporting procedures were properly followed. There is always the possibility of bias in self reported data. Given that this reporting is legally mandated, we assume that is is far less biased than typical self-reported data but we acknowledge that an individual officer could neglect to report an incident/contact or report the reason-for-stop untruthfully.
Conclusion and Recommendations to Policymakers
Our findings do not entirely reflect the conclusions drawn in the ASA and Github reports. The raw MPD data shows that stop-and-frisk practices in Washington D.C. disproportionately affecting Black individuals, specifically in neighborhoods described in the Census tract as having a high projection of Black residents. Yet our findings suggest that there is discrimination in the reasoning for conducting a Terry stop, but MPD is targeting PSAs because they have higher proportions gunshots recorded rather than higher proportions of Black residents. We draw that conclusion that individual officers are choosing to conduct Terry stops in a discriminatory manner, but the Department as a whole does not target communities with higher proportion of Black residents.
Ultimately, these figures should be used by D.C. lawmakers as an evaluative reference to address bias within the Department. This study serves not to measure the effectiveness of stop-and-frisk practices, but to contribute to the analytical discussion over the ethical methods of policing. Stop-and-frisk will conceivably remain a controversial practice due to its very nature of endorsing police officer discretion. However, studies that continue to replicate and supplement the information that has already been research will contribute more information to policy makers. This, in turn, will create equally effective and increasingly just methods of policing – not only in Washington D.C. but any city in the United States.
American Bar Association, “Tough on Crime/Soft on Crime: Redefining the Labels,” Human
Rights Magazine, vol. 29 (Spring 2002), https://www.americanbar.org/publications
Bloomberg, Michael R. “Michael Bloomberg “‘Stop and frisk’ keeps New York safe.”
Washington Post, August 18, 2013, https://www.washingtonpost.com/opinions
Cohen, Brent J. “Implementing the NEAR Act to Reduce Violence in D.C..” D.C. Policy Center.
“Floyd v. City of New York, No. 13-3088 (2d Cir. 2014)”, Justia US Law, Accessed November
Gelman, Andrew, Jeffrey Fagan, and Alex Kiss. “An Analysis of the New York City Police
Department’s “Stop-and-Frisk” Policy in the Context of Claims of Racial Bias.” Journal
for the American Statistical Association, (September 2007): 813 – 823.
Kelling, George. “Don’t Blame My ‘Broken Windows’ Theory For Poor Policing.” POLITICO.
August 11, 2015. https://www.politico.com/magazine/story/2015/08/broken-windows
Office of the Chief Technology Officer (OCTO).“Stop and Frisk Field Contact.”
DCGISopendata. Last modified March 29, 2018.
Office of the Chief Technology Officer (OCTO).“Stop and Frisk Field Incident.”
DCGISopendata. Last modified February 20, 2018.
Office of the Chief Technology Officer (OCTO).“Shot Spotter Gun Shots.”
DCGISopendata. Last modified February 20, 2018.
“QuickFacts: District of Columbia.” United States Census Bureau. Last Modified July 1, 2017,
“Terry v. Ohio.” Oyez. Accessed November 28, 2018. https://www.oyez.org/cases/1967/67.
Warren, August, Mahkah Wu, and Mika Weinstein. “Investigating Racial Inequity in D.C. Stop
& Frisk.” Github, September 6, 2018. https://gwarrenn.github.io/Stop-and-Frisk-DC/.
your own text
I wrote this paper for my class on the United States Congress. In it, I explore biennial budgeting and despite my initial support, I find it too weak to stand behind. Attached immediately below is the PDF version of the essay.
Congress & Legislative Behavior (GOVT – 321)
November 30th, 2018
A Consideration of Biennial Budgeting
Biennial budgeting is a commonly proposed solution to Congress’ current subverted and broken budgeting/appropriating process. The main change biennial budgeting would implement if enacted would be that Congress would only pass one budget per Congress, as opposed to the current two. There are three main variations of biennial budgeting: split session, stretch, and hybrid. Split session would have lawmakers pass one budget bill and one set of appropriations bills in the first year of the Congress and it would provide funding for two years while the second session would be focused on oversight. Stretch would have the current annual process stretched out over a two-year period and have the budget/appropriations provide for the following two years. The hybrid model discussed in this paper would use a single budget, as is in the split session model, and annual appropriation bills, as is in the current process. In order to properly consider biennial budgeting, one must recognize the goals of any Congressional budgeting reform should be: (1) more thoughtful consideration of each expenditure Congress makes, (2) increased meaningful oversight of programs that Congress authorized and appropriated for, and (3) a significant reduction or elimination of threatened and realized government shutdowns. After weighing each method, the hybrid biennial budgeting turns out to be the best of the three methods. Re-examining it against the stated goals of Congressional budgeting reform and finds that hybrid biennial budgeting does not meet those goals.
On June 12th, 1974 the Congressional Budget and Impoundment Act of 1974 (also known as the Congressional Budget Act of 1974 or CBA) went into effect over President Nixon’s veto (Congressional Budget and Impoundment Control Act of 1974, 1974). This legislation formalized Congressional budgeting and laid out the timeline and process by which the federal government would be funded. Since the enactment of the CBA, Congress has passed all necessary appropriations bills in the established time frame and usually passes less than one-third of the bills on time (DeSilver, 2018). This says nothing of the all-night budget battles, toxic messaging, evasive parliamentary procedures, and aggressive use of reconciliation which mar yearly budget and appropriation legislation; it is widely agreed that the Congressional budgeting system is broken. One periodically popular solution to the mess that is modern Congressional budgeting is biennial budgeting (Katz, 2018). Broadly speaking, biennial budgeting is a proposal that would amend the Congressional Budget Act of 1974 so that Congress would pass budget/appropriations bills that would fund the government for two years rather than one, meaning lawmakers would pass only one budget per Congress.
Before an in-depth consideration of biennial budgeting, it is important to first determine what is desired in a new budgeting process. Without goals, it is impossible to decide on the advisability of a new process. The three ‘must-haves’ in a new Congressional budgeting procedure are (a) more thoughtful consideration of each expenditure Congress makes, (b) increased meaningful oversight of programs that Congress authorized and appropriated for, and (c) significantly reduce or elimination of threatened and realized government shutdowns due to budget standoffs. These three goals provide for a more efficient government and some recovery of power in the legislative body through oversight of executive branch agencies. In addition to the ‘must-haves’, it would be worthwhile for a new budgeting procedure to provide for the consideration of long-term issues, specifically tax expenditures, mandatory spending, and debt ceiling induced shutdown or scares. Though they are not necessarily part of the ‘normal’ scope of budgeting in Congress, addressing the issues surrounding the aforementioned policies would provide for a more thoughtful and stable future for the country (Domenici & Rivlin, 2015).
Biennial budgeting proposals come in three main forms: split session, stretch, and hybrid. Though there are no technical definitions associated with each version, they propose to make budgeting a two-year process in very different ways. The first, split session biennial budgeting, is the most popular based on proposals that have made it to the House and Senate floor. This method would mandate that the budget process be changed to provide funds for two years rather than one, having budgets be considered only in odd-numbered (non-election) years and reserving the even-numbered (election) years for oversight of executive branch agencies by their authorizing and appropriating committees. To accomplish this, the Congressional Budget Act of 1974 would need to be amended to change any mention of ‘annual’ to ‘biennial’ and prohibit appropriations that do not extend authority/funds beyond a single year (unless the program is due to expire after a single year) (Biennial Budgeting and Appropriations Act, 2017). Further amendments would need to be included to better define when and how supplemental/emergency appropriations could be used.
The second, stretch biennial budgeting, is not widely promoted but represents an important school of thought behind the push for biennial budgeting. This method would simply extend (stretch) the deadlines of the current budget process and have the amounts appropriated extend for two years after their passage (Burgat, 2018). This proposal speaks to the idea that Congresspeople simply do not have enough time to pass budgets and appropriations in the current timeframe, in large part due to the increased complexity of today’s federal expenditures. Stretch biennial budgeting is unrealistic because new Congresses (and every four years, Presidents) would be forced to operate on the previous Congress’ budget and appropriations until October of their second session. To implement stretch biennial budgeting, Congress would amend the Congressional Budget Act of 1974 to reflect a two-year version of the current deadline structure with the final appropriations signed into law by October 1st of the second session of each Congress. Again, additional amendments would have to be included to better define when and how supplemental/emergency appropriations could be passed.
The third form, hybrid biennial budgeting, has no singular form but generally combines different parts of split session and stretch biennial budgeting as well as aspects of the current budget system. For the purposes of this paper, hybrid biennial budgeting will be defined as a method of Congressional budgeting where Congress passes a budget resolution containing funding for two years (similar to the split session method) and passes appropriations bills annually (mirroring current budget process) (Pelosi, 2018). To implement this method Congress would have to amend the CBA to instruct Congresspeople to pass a budget which provides two years of funding and can only be passed in the first session of that Congress. For all three methods additional amendments would have to be made to the United States code, but none as concentrated as the Congressional Budget Act of 1974.
Those who advocate biennial budgeting herald a number of wonderful changes to legislative behavior. For all three methods, proponents claim that federal agencies would be better able to predict their budgets and make more efficient choices as a result, lawmakers would have more time to devote to other meaningful legislation and engage in additional oversight, lawmakers would also be better able to address long-term spending changes outside of election years and with a more foresighted vision (Young, 2018). Proponents also point to the fact that Congress currently operates on two-year budgets due to the politics and recent statutory regulations on spending as a reason to enact biennial budgeting (Greenstein & Horney, 2006). Specific benefits for each method are touted by supporters; split session would increase time for oversight, decrease the number of times the government could get shut down, and free the budget process from the oncoming elections in the second session (Katz, 2018). Stretch would give lawmakers more time to consider spending choices and give new Congressmembers more time to familiarize themselves with the complex process. A hybrid model would limit the major budget battles to only once per Congress while keeping appropriators in close control of department’s budgets and give executive department leaders a more stable forecast while keeping them accountable to Congress.
Opponents of biennial budgeting disagree that implementing any of these methods would be an improvement on the current system. Addressing each individually, opponents argue that split session would (a) lead to gross overuse of emergency/supplemental appropriating in the second session due to changing conditions in the economy and political opportunism (Boccia, 2018), (b) budget/appropriations fights would be twice as intense as they currently are and lawmakers would be less willing to compromise due to the higher stakes (Committee for a Responsible Federal Budget, 2013), and (c) Congressional oversight would suffer from appropriators not having immediate financial punitive measures for misbehaving executive departments (Boccia, 2018). Opponents also fear that lawmakers would not take the second session to actually conduct additional oversight, rather lawmakers would ignore larger budgetary issues in ‘off’ years (Dody, 2018). For the stretch method, opponents of biennial budgeting point out that new Congresses and Presidents would have to operate on budgets set by previous administrations/Congresses which means they would not be able to quickly implement the programs/positions they were elected on (GAO, 1984). Additionally, opponents contend that when lawmakers are not sitting during the majority of the implementation of their budgets they would act less responsibly and would decline to address ‘tough questions’ during the appropriation process due to it being an election year. Looking at the hybrid method, opponents point out that much like the split session method, the budget fight would be much more intense, and lawmakers would be less willing to compromise due to the higher stakes and such a fight could crowd out meaningful appropriation discussion during the first session.
Holistically, opponents of biennial budgeting argue that implementing any method of biennial budgeting would have a negative impact on the budgeting/appropriations process because economic and tax forecasts, off which dollar amounts are determined, will be less accurate at this increased range (Committee for a Responsible Federal Budget, 2009), lawmakers would not be able to appropriately respond to large changes in the economy (wars, crashes, booms, or recessions) quickly, and Congresspeople would generally have fewer opportunities to debate fiscal concerns.
Evaluating the arguments made by proponents and opponents of biennial budgeting, a few likely outcomes emerge from each method. Split session, though it is the most popular, would likely not make a significant positive change in the budgeting/appropriations process. Pushing the troubled budgeting process into a single session will only intensify the already red-hot fights. The second session would leave more time for oversight but considering the pressing time demands each Congressperson faces, it is more than likely that the extra time allotted will be spent elsewhere. Thinking to the feasibility of enacting split session biennial budgeting, the change would take a significant amount of power away from the appropriators, a group of legislators who would surely fight the change to keep their influence. The stretch method is a non-starter on the fact that new Congresses and Presidents would have to wait over a year to begin to implement their promised budget and programs through the ‘normal’ process. A hybrid method would have the best chance of making a positive impact on the budgeting process. Changing the procedure to a single budget resolution shows a more long-term outlook and enables upper-level department officials the ability to make more farsighted plans while appropriators still retain their authority to serve as a check on executive agencies year-to-year. The answers to how reconciliation would be structured and how intense biennial budget battles would be vary depending on the character of the Congress. Considering the 115th Congress’ behavior, reconciliation would be used aggressively and the battles surrounding the passage would be incredibly destructive. Future Congresses may be more amiable and work better in this method, but such a Congress is not currently foreseeable.
Given the previously discussed strengths and weaknesses of the three biennial budgeting methods, hybrid biennial budgeting is the best contender. Therefore, it shall be assessed against the budgeting reform goals. Turning first to the desire for more thoughtful consideration, biennial budgeting confines a larger budgetary decision into the current timeframe and keeps the already contentious appropriations decisions in their current timeframe. This realization that more work is being forced into the current timeframe means there would be less consideration per expenditure decision rather than more. As previously stated, the extensive demands on Congresspeople’s time cast doubt on the idea that this liberated time would be used for additional oversite hearings as its intended purpose. Moreover, the idea that strictly more hearings are necessarily a better use of lawmaker’s time is questionable. There are already over 5 non-appropriation hearings a day on the average in-session day (Fichtner, Kuck, and Michel, 2016) and increasing their number without diving into the efficacy and efficiency of those hearings would be unwise. Hybrid biennial budgeting could be pushed against and over set deadlines, exactly like the current system is; Congress’ explicit decision to ignore its own rules is what leads to shutdowns and delays, and the same could be done with any biennial budget proposal. Only punitive measures – like elimination of all recess until a budget/appropriation is passed – would hold Congress to the deadline.
No biennial budgeting method would achieve the goals of budgeting reform, as explained above, nor would it address larger fiscal concerns. Biennial budgeting does not incentivize consideration of tax expenditures or mandatory spending – realistically it dis-incentivizes it. Proponents of biennial budgeting contend that the second session could be used to tackle these long-term issues, but their reasoning for putting budgeting/appropriations in the first session explains precisely why long-term fiscal problem solving would not take place in the ‘off’ year: it would be election time. Even more politically painful than regular budgeting/appropriating is making changes to two of the most popular government programs – Social Security and Medicare. To advocate for the changes that the two programs will ultimately need is political suicide, and putting it front and center in an election year is unthinkable. Additionally, reviewing tax expenditures is just as unpopular with the business community as reforming entitlements is with the public – not something a lawmaker up for reelection would be interested in. Looking finally at avoiding running into debt ceilings, biennial budgeting does not necessarily deal with this issue. Proponents argue that crafting a two-year budget would give lawmakers a more far-ranging view of the country’s fiscal policy, but the opposite could also turn out to be true and legislators less exposed to the budget spend less time addressing its problems.
Congress is certainly in need of budgeting/appropriations reform, and taking a look at the Congressional Budget and Impoundment Act of 1974 is the way to begin. However, the answer should not be biennial budgeting in any of its current forms. Biennial budgeting would not achieve any of the goals or desires of a reformed budgeting process. The reform needed must contain provisions that virtually guarantee more genuine consideration of expenditures, more meaningful oversight, and fewer threatened and realized government shutdowns. The reform should also contain measures that ensure lawmakers confront the long-term fiscal issues which currently face the United States. Budgetary reform is necessary, but biennial budgeting is not the answer.
1984 GAO Report on Biennial Budgeting, 1984
“Biennial Budgeting Picks Up Steam in Congress.” Committee for a Responsible Federal Budget, Committee for a Responsible Federal Budget, 3 Apr. 2013, www.crfb.org/blogs/biennial-budgeting-picks-steam-congress.
Boccia, Romina. “Biennial Budgeting Is No Antidote to Budget Process Failure.” The Heritage Foundation, The Heritage Foundation, 11 Sept. 2018, www.heritage.org/budget-and-spending/report/biennial-budgeting-no-antidote-budget-process-failure.
Boccia, Romina. “To Make Congress Face Down the Debt, Revive the Budget Process.” The Heritage Foundation, The Heritage Foundation, 22 May 2018, www.heritage.org/budget-and-spending/commentary/make-congress-face-down-the-debt-revive-the-budget-process.
Burgat, Casey. Examining The Case For Biennial Budgeting. 2018. R Street Institute.
Congressional Budget and Impoundment Control Act of 1974, 1974.
DeSilver, Drew. “Congress Has Long Struggled to Pass Spending Bills on Time.” Pew Research Center, Pew Research Center, 16 Jan. 2018, www.pewresearch.org/fact-tank/2018/01/16/congress-has-long-struggled-to-pass-spending-bills-on-time/.
Domenici, Pete, and Alice Rivlin. Proposal for Improving the Congressional Budget Process. 2015, Proposal for Improving the Congressional Budget Process.
Eid, Dody. “Congress Wants to Do Even Less Budgeting. Here’s Why That Would Be Disastrous.” The Heritage Foundation, 10 July 2018, www.heritage.org/budget-and-spending/commentary/congress-wants-do-even-less-budgeting-heres-why-would-be-disastrous.
Greenstein, Robert, and James Horney. Biennial Budgeting – Do the Drawbacks Outweigh the Advantages?. Center on Budget Policy and Priorities, 2006.
Jason J. Fichtner, Angela Kuck, and Adam N. Michel, “Biennial Budgeting: A Look at Intents vs. Potential Outcomes,” The Mercatus Center at George Mason University, March 10, 2016, https://www.mercatus.org/publication/biennial-budgeting-look-intents-vs-potential-outcomes .
“Ideas for Improving the Budget and Appropriations Process.” Nancy Pelosi, 2018.
Katz, Eric. “Bipartisan Group of Lawmakers Makes Late Push for Two-Year Budgeting.” Government Executive, Government Executive, 15 Nov. 2018, www.govexec.com/management/2018/11/bipartisan-group-lawmakers-makes-late-push-two-year-budgeting/152870/.
Staff Working Paper – Budget Process. 2009. Committee for a Responsible Federal Budget.
Young, J.T. “Two-Year Budget Would Improve Congressional Oversight.” TheHill, The Hill, 2 Oct. 2018, thehill.com/opinion/campaign/409547-two-year-budget-would-improve-congressional-oversight.
During my time at the United Planning Organization, I recognized room for improvement in their methods for data collection so I took it upon myself to find a solution. Below is what I proposed to the UPO staff in April of 2018. Immediately below is the original PDF proposal.
Update Proposal – Moving UPO to the Digital Age
Digitize UPO’s Shelter Transit Data Collection
The UPO Shelter Transit office collects pick-up information on paper sheets which are piled up in the office, taking up space and presenting a massive roadblock to anyone trying to research or analyze the Shelter Transit office’s activities. If this data collection were digitized it would greatly increase the efficiency and usability of this data. It would also eliminate a large amount of paper usage, which is a cost and environmental liability. This problem has been approached before, but the cost of creating a system, buying hardware and software killed that conversation. I propose a solution that achieves close to the same result with a much smaller overhead cost.
I propose using Android tablets (specifically an Asus – ZenPad 8.0) equipped with Google Drive to collect data in vans, then once back office download the Google Sheets to UPO’s existing Excel storage. This would create an accessible library of all Shelter Transit data with less labor than the paper system and a relatively low overhead cost.
|Item||Cost Per Item||Cost for Fleet|
|Case for Tablet||$22||$264|
|Car Charging Converter||$8||$96|
|Extra Charging Cable||$8 (pack of 3)||$32|
Each van operator would carry the tablet on their drives, keeping the tablet charged with the car chargers. When they would usually record using paper, they would instead enter the information on a Google Sheet. When they returned from their trip they would plug the tablet into the charger and the tablet would automatically connect to UPO Wi-Fi and automatically upload the information to the Google drive system. Once a week (or once a day) a person in the office (presumably the secretary) would download the Google Sheet to the existing excel system and delete the data off the Google Drive (a procedure that would take less than 6 minutes). All data would be stored in UPO systems with no additional software costs.
The cost of printing the transit logs would be eliminated, issues with reading handwriting would no longer be a problem, and reporting information would be done automatically. Future employees/interns could efficiently analyze the data to identify trends that would aid UPO’s mission and increase the effectiveness of UPO’s efforts.
*Possibility of this price going down through at-cost sellers and charitable donations
As part of my capstone for the Community Based Research Scholars Program, I researched the best practices of work training programs and evaluated the United Planning Organization’s Workforce Institute off of my derived criteria. Attached is the presentation I gave to the President/CEO of UPO, the director of the Workforce Institute, other stakeholders from within UPO. I have removed the evaluation portion of the PowerPoint for the sake of UPO’s privacy.
York Community High School Commencement Address, 2017
Brief – I delivered my high school’s commencement address in May of 2017. I focused on the importance of common ground and listening as students who were going into a highly polarized world. A video recording of the speech can be found here. The transcript is below.
Hello, my name is Dominic Gatti and I would like to start off by saying thank you to all those who enabled me to be speaking up here today. It is an honor to stand before such an accomplished group of students.
This year on speech team I talked about how to find common ground. My speech was structured as an 8-minute presentation chock full of sources and citations, with a full circle ending, and if you weren’t in the event, it was honestly quite boring. I enjoyed giving the speech but I thought that once the season ended in mid-February, I would be done. However, as I sat thinking about what to say, what I wanted to convey to my peers that was important and useful and universal, the only worthwhile thing I could think of was the same topic that I had talked about every Saturday morning at 7 am. The centerpiece of our life at York has been ability to listen to one another, to see each other – to find common ground.
Here at York we had excellent opportunities to express ourselves with the classes we took, clubs we joined and people we interacted with. Yes, we chatted with our friends and ‘listened’ during class discussions, but it is much harder to interact with people in a way that creates insight. The world we head into has not set a good example; there are riots on college campuses, instances of extreme hate and endless streams of narrowly opinionated media. But in spite of the poor example the world has set for us, we individually, have the opportunity to create better. To do that we must recognize that communication is key and the cornerstone of communication is listening. Thank you, mom dad, teachers and principals who have all told us to listen. You are undoubtedly right, but the listening I am talking about asks us to step further. Each of us will meet people we disagree with in the coming years but despite the potential differences, those people deserve our attention and consideration just as we deserve theirs. York has given us ample opportunity to develop and share our thoughts and opinions both in and outside of the classroom and I wish that each of you will carry on the good deed and listen to those you meet. Just as York’s strength lies in its diversity of opinions, our individual strength lies in our commitment to live by the lessons York has taught us; to listen to one another, to see each other – to find common ground.
Now I have never heard a commencement speech that did not make use of a quote, so in good form I bring to you the wise words of Henry David Thoreau: “It takes two to speak the truth – one to speak and one to listen.” The truths we discover from others may be simply profound or profoundly simple, but not matter the situation you find yourself in in the coming years, remember to listen to those around you and make use of their wisdom and experiences.
I was responding to a constituent inquire about voting ID laws in Illinois on behalf of the state senator I was interning for.
Dear Mr. ———–,
Thank you for reaching out to my office with your inquiry about voter ID laws.
The most recent legal change that encompassed voter ID laws was signed into law this past year. In registering to vote, one must present two forms of valid identification, and then when they go to cast their ballot, no additional identification is required. If someone registered by mail without a license or a social security number, then they would have to present one form of identification at the polling location. If someone forgets to or is unable to register to vote before the election date, they can show two forms of identification at the polling location, or cast a provisional ballot which goes through extra security measures before it is counted in the election.
The penalty carried by voter identity fraud is heavy – up to $10,000 and/or 5 years in jail. Also, to ensure against voter fraud, the polls are staffed by election judges, and poll watchers are allowed to monitor polling in order to help guarantee the rules are being followed.
The mail-in ballot you received went through other security precautions before it is counted in the election and is then marked down by election judges so that someone cannot vote twice.
I agree that the Illinois voting system can be confusing, so I am glad you reached out and I hope this is helpful. If you have any other questions or concerns, please do not hesitate to contact my office either by phone (630-903-6662) or by mail (338 S. Ardmore Ave. Villa Park IL 60181).
In this letter, I was replying to a constituent complaint about the noise of airplanes from the international airport that has flight paths over the senator’s district
Dear Ms. —–,
I very much appreciate you reaching out to my office. The O’Hare noise issue is one we know well, and it is a high concern among our constituents. In order to address this issue, I have worked with various departments and am happy to announce that a program to balance and test the noise disturbances began July 6th.
The Fly Quiet Runway Rotation Test Plan is a system to more evenly distribute flight paths around populated areas and route flights over less populated areas such as highways and forest preserves. The majority of the flights that are being re-routed are at night and will be rotated every week.
The program is run by the Chicago Department of Aviation, and they are maintaining a website that requests affected persons to provide feedback on the effectiveness of the program in order best address the issue long term. They also have the specifics of the flight rotations as well as more information about the tests on their website (http://www.airportprojects.net/flyquiettest/schedule/).
I hope you found this helpful, and if you have any more questions or comments feel free to reach back out to my office either by mail (338 S Ardmore Ave Villa Park IL 60181) or phone (630-903-6662).