If it cannot be argued that a city has breached a federal or state environmental law, then surely it’s committed some form of discrimination. If discrimination cannot be plausibly alleged, well, federal and state constitutions are full of words and promises that might have been violated.
We have had campaign-finance reform, and reform of the seniority system in Congress, and endless rounds of anticorruption measures in the federal government. Calls for “transparency” and “accountability” have meant more administrative and judicial supervision. In turn, power flows to impersonal institutions (agency review boards, courts, and so on) and away from elected leaders who can get things done—and who can be punished at the ballot box for delay and disappointment.
Since the 1980s, courts have become more conservative, without ceasing to be activist. They have, to take one example, persistently struck down restrictions on guns—most recently in Illinois—so that now the laws of every state in the union grant some sort of right to carry concealed weapons. Who decided that Illinois should have concealed carry? A panel of judges whose names most citizens have never heard. If things go wrong, there are few means to correct their decision, and only the most wonkish voters will know whom to blame.
And yet, when government seems to fail, Americans habitually resort to the same solutions: more process, more transparency, more appeals to courts. Each dose of this medicine leaves government more sluggish. To counter the ensuing disappointment, reformers urge yet another dose. After Speaker Tip O’Neill retired from Congress, in 1987, an interviewer asked him how the House of Representatives had changed over his 35 years of service. He memorably answered, “The people are better. The results are worse.” His answer might be generalized across the American system of government: the process is better (at least as better is conventionally defined: more transparent, more participatory), but the results are worse.
Here’s a real-world example from the executive branch. Throughout most of American history, presidents and their staffs have been able to hold confidential meetings in the White House complex. The independent counsels who investigated the Clinton White House jolted this traditional understanding by demanding—and getting—access to White House visitor logs. Thanks to these logs, investigators gained such indispensable pieces of information as the fact that Eleanor Mondale visited President Clinton alone for 40 minutes on a Sunday morning in December 1997.
The George W. Bush administration attempted to restore the traditional confidentiality of White House visitor lists. (Vice President Dick Cheney went even further, demanding that his office—not the Secret Service—keep custody of the list of all his visitors.) This attempt to restore the historical norm enraged Democrats and liberals. They accused the White House of holding “secret meetings” with energy executives. Administration foes sued to gain access to visitor logs. As a presidential candidate, Barack Obama promised to publish logs of all visitors to his White House. In office, he’s kept his word.