“Experience is the oracle of truth,” James Madison wrote, with an eye to reforming America’s early government, “and where its responses are unequivocal, they ought to be conclusive and sacred.” Nearly two years into humanity’s struggle against Covid-19, we should consult the same oracle to better understand the task of reform in our own time.
Among the many lessons recent experience teaches are two about government administration. First, Covid-19 reminded us once again that American government is ill-suited to pivot from an emergency footing to a non-emergency footing. And second, America’s informational institutions are too concentrated within the executive branch’s administrative agencies, exacerbating the rest of government’s and the public’s dependence on them for information. These two problems are related.
Our government is well-built to respond to emergencies. Indeed, that’s one reason why it was built in the first place. The early republic’s incapacity for responding to domestic crisis and its vulnerability to foreign attack spurred America’s founders to create a new and more energetic constitutional government, with a presidency capable of leading amid crisis. Those powers have since been further supplemented by Congress with a panoply of more specific emergency powers. When disaster strikes, legal power and political gravity accumulate quickly in the executive branch, especially in the White House, while Congress and the courts recede even further into the background. State constitutions and statutes are similarly constructed.
But once the government finds itself on this emergency footing, there is no natural path back to the ordinary system of checks and balances. The president’s emergency powers have nominal time limits, but they are easily extended; more importantly, there is no obvious roadmap for the other parts of government to reconstitute and reassert themselves against the executive branch’s predominant power. We have witnessed this throughout the pandemic, for example when the Supreme Court uneasily approached the CDC’s eviction moratorium and grappled with myriad actions by state executives whose edicts raised large questions of individual liberty and the rule of law. Similarly, Congress, more inert than ever, has evinced no real understanding of what it might contribute to Covid-era governance other than appropriating funds.
If this first problem — how to restore the balance of non-emergency governance after a crisis — is relatively familiar and straightforward, the second problem is much more nebulous and multifaceted. From the earliest moments, the Covid-19 emergency cast into stark relief America’s overwhelming reliance on the executive branch for facts and guidance. As we witnessed the strange spectacle of daily briefings in the White House press room featuring the president’s antics and public health officials’ advice, and their reliance on the CDC as the predominant authority on public health best-practices, the nation’s informational institutions outside government largely receded from public view. And those that remained, such as social media platforms and journalistic fact-checkers, reflexively invoked government sources to refute contrary claims.
This Covid-era dynamic has accelerated broader trends toward the consolidation of informational power among a few centralized authorities. And it has further deformed the loose set of institutions and norms that Jonathan Rauch, in a 2018 National Affairs article, identified as Western civilization’s “constitution of knowledge.” This is an arrangement in science, journalism, and the courts in which “any hypothesis can be floated” but “can join reality only insofar as it persuades people after withstanding vigorous questioning and criticism.” The more that Americans delegate the hard work of developing and distributing information to a small number of regulatory institutions, the less capable we all will be of correcting the system’s mistakes — and the more likely the system will be to make mistakes in the first place.
In a 1999 law review article, Timur Kuran and Cass Sunstein warned of availability cascades, a process in which activists promote factual assertions and narratives that in a self-reinforcing dynamic become more plausible the more widely available they are, and can eventually overwhelm the public’s perception. The Covid-19 era has been marked by the opposite problem: unavailability cascades, in which media institutions and social media platforms swiftly erase disfavored narratives and dissenting contentions from the marketplace of ideas, making them seem implausible by their near unavailability. Such cascades occur because legacy media and social media platforms have come to rely overwhelmingly, even exclusively, on federal regulatory agencies’ factual assertions and the pronouncements of a small handful of other favored institutions, such as the World Health Organization, as the gold standard of facts. But availability and unavailability cascades, even when intended in good faith to prevent the spread of disinformation among the public, risk misinforming the very people they purport to inform. A more diverse and vibrant ecosystem of informational institutions would disincentivize the platforms’ and media’s reflexive, cascading reactions to dissenting views.
This second problem — the concentration of informational power — exacerbates the first one: how to counterbalance the executive branch’s power after an emergency. In order for Congress, the courts, and other governing institutions to reassert their own constitutional roles after the initial weeks and months of crisis, they (and the public) need credible sources of information outside the administration itself. An informational ecosystem not overweighted so heavily toward administrative agencies, one that benefits more from the independent contributions of experts in universities, think tanks, journalism, and other public and private institutions, would improve the quality of information that it produces. It would also be less susceptible to the reflexively partisan skepticism that has become endemic in the polarization of modern president-centric government.
One of the most valuable things that Congress might do would be to improve and expand informational institutions beyond the executive branch’s administrative agencies. Congress can accomplish this within government, by creating and reinforcing agencies tasked not with regulating but with informing — agencies like the Energy Information Administration, the Bureau of Labor Statistics, and other entities that, while part of the executive branch, are focused squarely on fact-finding and informing rather than policymaking. And Congress can also help reinvigorate informational institutions outside government, by relying more heavily on them in Congress’s own hearings and policymaking, and by passing laws that would require agencies to interact more with such institutions in the agencies’ regulatory processes.
By creating new informational institutions and improving existing ones, Congress could improve the marketplace of ideas — and increase its own capacity to reassert itself during the next emergency era.
End the State Monopoly on Facts