BB57, that is a brilliantly crafted post and a well-stated position. Thank you for posting it, as I have plans to use your post as the basis of a family discussion at tomorrow night's dinner table.
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Your dinner table conversations are a lot more interesting than mine.
Before I went to work for the federal government I had a pretty average not so positive view of the federal government.
After working there about 3 months my view of the federal government and how it worked fell considerably. It's not the system or the processes themselves, they are actually designed quite well with (originally) adequate safeguards to ensure that both the intent of congress and public comment would be heard and followed.
However any system or agency is only as good as the people in it or the people who lead it. Please don't take that wrong and paint all feds with the same brush. The people I worked with in the federal government at the policy and regulation making inside the beltway level were on average smarter than any other group of people I'd ever worked with. They were also for the most part very well intentioned - and almost always frustrated by the poor quality of leadership.
The problem was that they were poorly lead by upper level bureaucrats (GS 15s, SES and political appointees) who were far more often than not seriously lacking in knowledge about the things they regulated, ignored staff with subject matter expertise and field experience, and were attorneys by training, if not by actual practice.
Practicing attorneys who actually take cases to trial absolutely have to look at all sides of any issue or fact to ensure they can construct an effective prosecution or defense. Lawyers who cannot maintain a solid grasp on the big picture and understand how each fact fits into it, even when many of those facts are potentially conflicting, will not be successful as courtroom attorneys. Then end up going somewhere else and many of them end up in the federal government.
That legal background in those upper level bureaucrats (who were also not so good at big picture thinking or dealing with disparate information) made them incredibly risk averse, in a really bad way. Those upper level, legally trained bureaucrats and political appointees would rather do a narrow read of the law and proglomate regulations that were internally inconsistent and or missed the larger intent of the statute, rather than listen to common sense or subject matter experts and risk being "wrong".
By doing a narrow read of the law they could (and did) blame the statute and congress for writing the language if they were ever called out for writing a bad regulation or giving bad sub regulatory guidance. They'd use that narrow read of the law approach even when they KNEW it was wrong because they could still defend their decision based on statutory language that congress wrote.
Those same staff were also invariably focused on managing their careers and when placed in a leadership position would also default to doing things the way they had always been done, since again if they were ever questioned about a decision they would defend it based on it being long standing policy and/or the way their predecessor had done it. Thus it was "safe" and making a decision that they KNEW would have a bad outcome would still leave their career protected.
The two would combine when a person in a high level position would a) make a mistake in reg or sub regulatory guidance, b) eventually realize or have the error pointed out, but then c) continue to give the same erroneous sub regulatory guidance to other states or individuals because it was "consistent" with the earlier (erroneous) guidance. They'd rationalize that based on the belief that admitting a mistake and changing policy, regulation or sub regulatory guidance accordingly would make them/the Department look weak. They'd also back it up with the reasoning that consistency is important in law and that to change how a law is interpreted leads to chaos.
The first time I encountered that rationale occured when I was being directed to revise guidance that was not only clearly incorrect, but also confirmed by my Division director to be incorrect. But she stated very clearly that while "we" were wrong, we were not going to issue conflicting guidance and would continue to be wrong. The concept that we'd go back to the state where she had personally issued the incorrect guidance and correct it was a totally alien concept to her.
In the end I didn't issue the guidance at all. I instead called the state with the question on the phone, explained the problem I'd have in getting them formal guidance that was accurate and instead advised them - informally - on the correct approach to take, along with the supporting citations and overarching intent, and then told them how to implement it while staying under the radar. I did that that for 12 more years before going back to a state in a state program director capacity.
It was very effective, and resulted in very good outcomes for the states I worked with directly, but it was not career enhancing. Managers like those described above lack the confidence and emotional security to actually listen to the staff they supervise and then use that advice to make better decisions. Instead, they equate knowledge and being "right" with pay grade. They see anyone below them who suggests things could be done better in terms of policy, practice or specific regulatory language or guidance as a potential threat.
They recognize the knowledge gap they possess and thus they will never promote someone who they see as a potential threat. That makes the system self perpetuating as they will hire and then promote other legally trained but program ignorant staff who will tell them what they want to hear and who will do whatever they are told. Those incompetent, risk averse but loyal people in turn rise in the agency and in turn promote other incompetent, risk averse staff.
The subject matter experts, the people with common sense, and even the subset of attorneys who are willing to listen and learn, eventually get frustrated and leave. That subject matter knowledge and field experience is then lost to the agency. Rinse and repeat that a few times and you get what we currently have.
Most federal agencies need a serious enema, but you have to realize the hose needs to be stuck in at the top to flush the upper and middle management levels.
