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Law & Courts Opinion

Bribery, Blackmail, and Implementation: Thoughts on Federal Policy

By Andrew Rudalevige — May 01, 2012 6 min read
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The second in a five-part series

People of a certain age—which is to say, mine—can instantly recall the “I’m Just a Bill” installment of the “Schoolhouse Rock” cartoon series. In just three minutes, an aspiring statute lounging on the steps of the U.S. Capitol made the legislative process memorable and even misleadingly melodic. But, having taught America’s children “how a bill becomes a law,” the series’ creators never produced the obvious sequel: “What happens after a bill becomes a law.”

Perhaps this topic was simply too disturbing for Saturday-morning television. After all, when it comes to transforming a public law into public policy, the American political system is for adult viewing only: It prominently features bribery and blackmail.

Effective policy implementation is problematic for many reasons. Primary is the fact that American government is not an “it,” but a “they.” Policy execution must be overseen by a large number of organizations and individuals within and across levels of government. These multiple personalities bring to bear divergent financial and administrative resources; they have uneven incentives and motivations to comply; and they are constantly tempted to wait for a new political coalition and a better deal. In short, as Alexander Hamilton put it in 1798: “How widely different the business of government is from the speculation of it!” The result, he worried, was “delay and feebleness.” Too often, of course, that has served as a fair description of federal education policy.

See Also

Read the entire five-part series of essays adapted for Education Week from the recently published book Carrots, Sticks, and the Bully Pulpit. Writers include Charles Barone, Larry Berger, Chester E. Finn Jr., Andrew Rudalevige, and Marshall S. Smith.

Indeed, education policy is particularly poorly suited to hierarchical command and control. It is an arena where the federal government faces competition both for the right to act at all and to have anything like the last word. National policy must be turned over to state and local actors with their own constituencies to please and their own independent authority. There are a lot of moving parts here—for a start, 50 statewide education bureaucracies overseeing approximately 14,000 districts, close to 100,000 school principals, and 3.6 million teachers (not to mention 55 million schoolchildren).

Worse, good policy depends crucially on how it is crafted, not simply the merit of the original idea. But political consensus often requires ambiguity, not exactitude. For example, during the debate over the No Child Left Behind Act, the idea of accountability was widely supported. But there was little agreement on what that concept ought to mean in practice. Thus, the language of the law met the needs of an odd coalition wedded to diverging priorities, but not of those who would have to implement it.

 Federal policymakers need to be realistic about both the levers of the American political system and the effects of the policy reform they prize.”

The irony here is that successful lawmaking can readily lead to problematic law. It doesn’t help that as soon as a bill passes, factions start seeking to change it—whether in Congress, the courts, state capitals, or the regulatory arena. The fight’s immediate winners declare victory and seek to move on.

But American politics is not a prizefight, with clear and sporting rules and an acknowledged winner. It is instead, as the late, great James Q. Wilson once observed, a bar fight. There are no real bounds on participation, tactics, or weaponry. Just when it seems settled, it starts up again in the alleyways outside, pulling in new combatants with new energies. In recent years, the theater of operations has only expanded, and the bipartisan sheen of education policy has been worn off by the creeping nationalization of partisan polarization.

What works, then, if dictate rarely does? The short if uncomfortable answer returns: bribery and blackmail. We have seen both in federal policy.

As early as 1862, with the passage of the Morrill Land-Grant Act enabling the creation of land-grant colleges, the federal government caught on to using federal resources to encourage states to follow federal preferences. Similar strings have yanked the states into doing much else—for example, imposing annual tests for grades 3-8. While the federal government pays only a small fraction of national education costs, it doesn’t take a lot of money—especially in tight fiscal times—to change behavior. (In fact, as we have also seen, granting waivers of statutory requirements might be enough.)

And a lot of money can lead to a lot of change, as the federal Race to the Top grant program suggests. Even states that failed to win were clamoring to make important policy changes along the lines laid out by U.S. Secretary of Education Arne Duncan and his $4 billion-deep wallet. True, promises made may remain unachieved. But one lesson of the Race to the Top is simple and familiar to any parent: Bribery works.

So does blackmail. While this could simply mean a federal threat to take cash away if compliance slackens, more intriguing for present purposes is the kind of blackmail pursued in classic detective mysteries. Comply, warns the blackmailer, or something you don’t want known will be publicized.

The data and transparency provisions of NCLB follow this second approach. By requiring states and districts to publish data on grade-level educational attainment—and to do it frequently, consistently, and broken down by student subgroup—the federal government put real pressure on states to improve or be embarrassed. States were also forced to enhance their administrative capacity to implement widespread testing and to gather and use the data gained from it. All this gave educators, administrators, and parents additional, and more actionable, information about school and student achievement.

Even as the coercive part of the law allowed or even encouraged states to drop their standards denoting what counted as “proficient” achievement, the transparency features allowed those standards to be compared via widely respected measures such as the National Assessment of Educational Progress. Publicizing report cards that found state standards were far less challenging than NAEP standards has helped pressure states to raise them, albeit slowly. This has also turned into a way of encouraging the adoption of higher common, ostensibly voluntary, standards through Race to the Top grants and No Child Left Behind waivers.

As all blackmail victims do, the states have argued that this is unfair. They have a point, if the measures utilized do not adequately reflect true student achievement. But it is the threat of such blackmail that can prompt states to seek better measures.

In short, bribery and blackmail can work in complementary fashion to enhance school accountability. But all of this is hard and frustratingly indirect. The federal government sets ends far better than it dictates means, but is tempted by state shirking and credit-claiming politics to make promises it cannot keep. (Say, for instance, the promise of 100 percent academic proficiency.)

Thus, as Congress lurches slowly toward reauthorizing the NCLB, which is the latest version of the Elementary and Secondary Education Act, federal policymakers need to be realistic about both the levers of the American political system and the effects of the policy reform they prize. How will things actually work if a given federal policy is enacted? What incentives and constraints will that policy provide and operate within? How can joint action lead to success rather than stalemate? We don’t need to put it to music, but we do need to think more seriously about what kind of a bill ought to become a law.

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