Recoding America: Why Government Is Failing in the Digital Age and How We Can Do Better

by Jennifer Pahlka

The formal process requires that agencies provide private parties potentially affected by a new rule with an oral hearing in which they can present their witnesses and cross-examine opposing ones, taking the judicial metaphor entirely literally. The United States Department of Agriculture tried this when it was about to issue a rule regarding the minimum peanut content in peanut butter. Advocates wanted it to be at least 90 percent peanuts, manufacturers wanted to require only 87 percent peanuts, and adjudicating that 3 percent difference under the formal rulemaking process took the Food and Drug Administration twelve years of the 1960s and 1970s. The case went almost all the way to the Supreme Court, and the oral hearing alone took twenty weeks and produced a 7,736-page transcript.12 (The advocates ultimately prevailed.)

The environmental movement got really good at stopping bad things from happening but less adept at enabling, and speeding up, good things. Now the habit of suing has itself become a great threat to our environment.

When a service designer like Natalie says, “I understand it’s complicated, but it has to make sense to a person,” she is rejecting elite, professionalized authority in favor of something more accessible, practical, and commonsense. She is also invoking a historically deeply rooted notion that we, the people, are allowed to interpret the law in ways that make sense to us.

As a member of the policy team on MACRA told me, large health systems consistently benefit more from value-based medicine programs. It’s not because they are delivering better quality care but because they are better at understanding program rules, choosing the right options, and reporting the right data. “We were not really measuring the quality of care doctors provide,” he admitted. “We were measuring them on how well they do administrative tasks.”

The people most likely to pay the cost of outsize administrative burdens are often those who need help the most. Those who care about equity, then, must be all the more on guard against the kind of thinking that puts technical nuances of law ahead of what makes sense to a person.

WHEN JAKE SOLOMON put together his teardown of MyBenefits CalWIN, the food-assistance application form with 212 questions, he didn’t stop there. He and two other graduating Code for America fellows, Dave Guarino and Alan Williams, wanted to get to the bottom of the question: Why was California, a mostly blue, pro-welfare state, tied with Wyoming for the worst food stamps participation rate in the country? About 43 percent of the people eligible for the Supplemental Nutrition Assistance Program in California weren’t enrolled.

Crazy

Alan knew he did not live in persistent poverty. He knew he couldn’t really understand what it was like not to have a backstop. But in that moment, he got a glimpse of what it can feel like to use a service that technically does what it is supposed to but ultimately has little regard for the people who use it. As Jake puts it, “Our services disdain those they are envisioned to help.”

Government needs suffocate not only the people building systems, but those operating in them.

People with means can avoid the pain of many government interactions, but when we do, we are missing a chance to build empathy for those who can’t.

When the GetCalFresh team made these choices, they were practicing a discipline called product management. It is frequently confused (especially in government) with project management, but the two are distinct, and the difference between them is crucial. Project management is the art of getting things done. Product management is deciding what to do in the first place—and also, as in the case of the benefit screeners, deciding what not to do.

(Equity policies can also make it hard to choose a phased-rollout approach. Government services are not supposed to treat different groups differently, and pilot programs designed to start small before launching big are often scuttled on those grounds. As we saw with the EDD, these well-intentioned policies can result in harm to the very people the policy is supposed to protect.)

Many people assume the tools of the digital trade are bits and bytes. But walls, markers, flip charts, and sticky notes often play a more important role in digital work than screens and keyboards. Not only do these tools provide insight into the user experience and expose the inconsistencies that can doom a project if caught too late but they also provide a bridge between factions that believe they lack a common language.

Everyone benefits when policymakers can explain to programmers what they intended, instead of leaving them to make their best guess. And the more digital teams understand the policy domain, the more opportunities arise for creative solutions.

“Public defenders have to work client by client,” she told me. “The reason I became a prosecutor is because I realized in a situation like marijuana legalization, I could make a whole file cabinet disappear just by making the right policy decision.”

“It felt to me just principally unfair that we would create more hurdles and obstacles to people accessing a right they’re entitled to,” Cristine told me later. “And obviously very inefficient. This was just going to be an exorbitant misuse of funds.”

THE PRESS HAD a heyday with the notion that an algorithm was, for once, helping people get unstuck from the criminal legal system instead of stuck in it. We were automating justice, including racial justice: because Black people were hugely overrepresented in the population of those with pot convictions, they were also overrepresented in the population that received the record clearance.

But Tom’s work didn’t start with academic analysis. It started with user research, talking to real people who would use the service and be affected by the new policy and understanding their circumstances, their resources, and, most of all, their needs. This approach was very different—and very eye-opening—for Tom’s policy partner. A few weeks into working with the GDS team, he came to Tom with his inches-thick binder of documents and plopped it down on the table. “You know,” he said, “I’ve come to the realization that what I’m holding is really six hundred pages of untested assumptions. I’m just going to set it aside for a while.” Tom, who now works with the global transformation consultancy Public Digital, has now seen that realization occur many times. “Why,” he asks, “is so much policy educated guesswork with a feedback loop measured in years?” It doesn’t have to be.

I often hear that tech changes so fast it’s difficult to keep up. But what government needs to keep up with is not tech but people. In part because of technology, people’s behavior and expectations have changed. Simple apps that do a lot for us have made people less tolerant of complex, multistep paperwork processes. Our devices constantly steal our attention, making it harder to persist through administrative burden. Increased inequality has made the time and attention burden even more costly to those who are most likely to engage with government. We push people to online interactions, but they’ve learned to distrust them, often for good reason. All these things matter enormously to how government must now relate to the public.

Glueck sounds on the defensive, and it’s not only because of high-profile cases that reveal the flaws in his narrative, like the failure and resurrection of healthcare.gov. It’s also because over the past ten years government has been attracting and developing more leaders like Mike Byrne or Yadira Sánchez, and their approach is beginning, very slowly, to sideline those who are happy to build multibillion-dollar concrete boats. Concrete boats are a lucrative and high-margin business. Their true cost is the failure of policy goals and further erosion of the public’s trust—through broken promises to veterans, for example.

HIGH-RANKING OFFICIALS IN government have themselves been complicit in promoting the narrative that skilled technologists don’t belong there. That attitude originates, in some ways, with the Brooks Act of 1965, defining automatic data processing as a commercial activity and OMB’s classifying it the following year as not “inherently governmental.”

When your employer sends you a W-2 form, it also provides a copy to the IRS; the same goes for statements of interest and other income. Yet Americans spend six billion hours a year collecting data and filling out tax forms. We spend $10 billion on tax preparation services like H&R Block and an additional $2 billion on tax preparation software like Intuit’s TurboTax.

But government doesn’t have the people it needs on either legacy or current technologies. Today, we are in a fierce competition for assembly language coders to keep the Individual Master File alive at the IRS, and our deficit will only get worse as the people who know the many systems like it retire. (Of the 7,500 IT employees at the Department of the Treasury, 63 percent are over fifty.)

Rule by tech is just another form of oligarchy.