The politics of denial: the use of funding penalties as an implementation device for social policy

Conclusion The standard literature on implementation offers a number of variables usually associated with successful policy-making.⁵⁰ Roughly, the variables can be sorted into three broad categories: the nature of the problem to be solved, the causal theory for problem solution embodied in the statute, and the execution of that statutory solution in practice. These categories will supply a framework helpful in highlighting the empirical similarities across the cases of oblique funding denial discussed above and also for revealing important differences. The similarities will show both the conditions which lead to the use of this particular policy device and the manner of its use; the differences will show the conditions under which it can be used most effectively. Discussion will then turn somewhat more theoretical, inquiring into the legitimacy of funding denial as a political means and the capacity of the state apparatus that employs it. First, the specific social problem addressed in each of the cases of funding denial was relatively intractable. Each involved a matter of moral purpose - how fast is it safe for one to drive? At what age is one responsible enough to drink? What is the extent of one's military obligation? What is meant by the principle of equal respect for all individuals? American government is naturally reluctant to confront such difficult moral decisions and to impose an authoritative determination upon its citizenry. Not surprisingly, therefore, each case of funding denial was the product of a perceived national emergency, accompanied by a dramatic mobilization of public opinion - the energy crisis of 1973; the campaign against drunk driving led by MADD; the sudden presumption of military inadequacy; the civil rights movement, especially the Birmingham marches. The widespread belief that something must be done gave to politicians the incentive to enact policies placing concentrated costs upon some particular population group as a prerequisite for achieving diffuse societal ends. Strong ideological justification remained essential even after initial threshold barriers were overcome. In the speed limit case, for instance, the necessary shift in rationale from energy conservation to traffic safety somewhat weakened the defense for concentrated costs and left the legislation much more vulnerable to challenge and exemption. American politics might well exhibit a general propensity toward particularistic preferences and so-called distributional policies, which award concentrated group benefits and impose diffuse social costs, but there do regularly exist circumstances that help enact policies embodying the exact opposite pattern. A further problem exists, however, when designing a feasible strategy for implementation. In each of the cases considered above, funding denial was adopted because of the perceived insufficiency of the normal, judicial means of coercive implementation - a legislated national 55 M.P.H. speed limit or a direct prohibition against interstate alcohol sales to individuals younger than 21 years old would mandate a significant federal police role and might burden the federal courts; prosecutions under the 1980 Selective Service Act and litigation under the 1954 Brown decision had been deemed incapable of forcing adequate levels of compliance. The alternative next proposed was cash incentives, making it lucrative for the designated actors to adapt their behavior. But, it was found, the political price of Southern school desegregation was not sufficiently counterbalanced by the promise of federally funded technical assistance; the prospect of increased highway aid funds was not enough to induce states to alter their drinking laws. It was then logical for lawmakers to turn to the disincentive power of financial sanctions. Oblique funding denial offered a simple and quite attractive theory of policy cause and effect: by threatening to withhold money from tangentially related concentrated benefits, the target population would be impelled to accept the entailed concentrated costs of social reform. In the two examples using highway funds, the states as intermediaries were constrained to impose policy costs upon certain of their citizens or else face penalties themselves. In the two other examples, the impulsion was applied to the targeted individuals or institutions directly. As a causal theory for solution, however, the funding denial strategy has its own inherent weakness. In all the cases considered, the population designated for enforcement was not the same as the total population whose compliance was needed in order to achieve the social end. For example, the Solomon amendment affected only non-registrant college student aid recipients, a distinct subset of draft law violators. Moreover, all college aid recipients, even if not formally eligible for the draft, were made subject to penalties if they did not sign the specified form. The provision was on one dimension too narrow and on another much too broad, leading to claims of unfair treatment. Similarly, the 21-year-old drinking age affected only a portion of adults who might drink and drive, yet it imposed sweeping limits on all members of a specific age group regardless whether they were drivers or not. The civil rights regulations were applied with inequitable narrowness, for Title VI enforcement affected only the institutions and programs supported by federal grants, and affirmative action under Executive Order 11246 was required only of federal contractors. The 55 M.P.H. speed limit, by contrast, was initially applied with inequitable breadth, uniformly restricting highway speeds irrespective of the type of terrain, the quality of the road or its safety record. Supporters of these provisions often justified them in terms of mere expediency. Chief Justice Burger's defense of the Solomon amendment, that funding denial was a rational tool to encourage compliance among a major group of lawbreakers, was basically the same as the one employed by civil rights advocates on behalf of Title VI. Expediency, nevertheless, is political as well as merely technical. Those who were targeted for the funding denial strategy not only exhibited a certain dependence upon government finance, they also tended to be politically weak. Youths, for example, have been subjected to the strategy both as students and as drivers. This political weakness was further exaggerated by the stigmatization of the victim. Teenage drivers, it was implied, were uniquely irresponsible; college students were unpatriotic; and Southern aid recipients lacked a fundamental respect for the constitution. The exception to the rule was interstate trucking, and thus it is not unexpected that truckers did win some relaxation in the speed limit when first proposed in 1973, and that the portion of the highway regulations that most affect them have recently proved susceptible to attack. Finally, turning to practical execution, it is obvious that federal administrators tend not to want to impose funding sanctions. In all the cases examined, the express legislative intent was to encourage increased voluntary compliance, and ample provision was always made to allow the violator to correct his behavior or to negotiate a compromise in good faith. Moreover, federal grant agencies see their primary function as that of giving away authorized money. Exogenous conditions placed upon the use of such money involved an uncomfortable and often unwanted conflict among agency priorities. The exercise of funding denial interferes with laudable program operations and risks jeopardizing relations with Congress and clients. Counterveiling pressures for vigorous action, from social movements or presidential initiative, have proved fleeting. Thus the actual withholding of authorized dollars has been usually considered somewhat drastic action, to be reserved for dire situations. The Transportation Department, for example, has not yet deducted the required share from state highway funds for violations of the 55 M.P.H. speed limit, despite the findings of an administrative law judge and a suit in federal court to force it to do so. The education division of HEW had a short period of remarkable enforcement activism during the late 1960s but suffered severely for it, and no other agency has been as aggressive in pursuing civil rights. Of course, program effectiveness should not be judged solely by the number of sanctions imposed. The declaration made by the law itself, supported by the threat of possible punishment, can sometimes be sufficient. On the other hand, excessively protracted negotiations and a clear reluctance to apply funding penalties can give credence to the excuses of violators and effectively undermine the incentive for recipients to obey. As V.O. Key observed regarding the funding weapon, The mere existence of the power may have considerable effect, but these indirect results are not so great if the power is not used now and then to give substance to the threats of its use. When conditions appearing to warrant discontinuance of grants are tolerated, the implied threat of federal withdrawal ceases to have potency'.⁵¹ It also should be noted that the standard for judging what constitutes satisfactory performance is not entirely fixed. Only half of the drivers must obey the maximum speed limit for a state to retain its full allocation. Draft registration compliance in the 90% range, monitored by self-certification by college aid recipients, has been considered a success. A similar standard for affirmative action by federal contractors would generate a storm of criticism. Therefore, it appears, funding denial is a potentially powerful weapon in the government arsenal that generally has been applied to relatively intractable problems but in an uneven causal manner by somewhat reluctant administrative agents. The examples discussed above, however, do permit some differentiation. The intractability of the problem addressed varied with the resolve of the target group and the extent of behavioral change required. The difficulties of practical execution varied with the leverage available to the government and the attitude of administrative superiors. On both dimensions, civil rights presented the greatest challenge. Finally, the causal construction of the statute, itself, varied in ways that affected its ability to overcome barriers to successful implementation. The funding denial instrument was sometimes linked to explicitly specified compliance standards and time horizons for their achievement. In those cases, there was least ambiguity regarding the expected behavior of the target group, and least opportunity for administrative footdragging or political veto. The drinking age and draft registration stipulations were presented as simple, dichotomous matters of yes-or-no; either the states passed the requisite law and the students signed the required form, or else they were automatically subject to penalties. The highway speed limit started as dichotomous, but when a number of states complied formally while intentionally promoting circumvention, the law was altered so as to impose partial penalties contingent upon more detailed performance criteria. With civil rights, however, the statute neither defined illegal discrimination, nor established performance standards to be met, nor dictated a timetable for acceptable progress. Thus it gave to executive agencies an enormous amount of independent discretion. The tempting conclusion is that the funding denial device should always be used with tight compliance standards and unavoidable violator consequences. This is not quite true. There can be situations in which the extent of the entailed behavioral change and the sensitivity of the issue require a more subtle approach. There can be situations in which the strictest enforcement rules will engender a legislative reaction sufficient to win repeal once popular momentum wanes, and situations in which implementation at less than full enforcement will nevertheless bring a policy response deemed adequate by the initial intention. Although the bias should be towards specificity, especially given the lamentable record for Title VI, the optimal strategy must be decided on a case-by-case basis. The critical question, however, is not whether the funding denial instrument can be used more effectively, but whether it legitimately can be used at all. There is a sense of impropriety linked to the implicit assertion that the federal government's promises can be later revised through the attachment of technically unrelated performance criteria, and of arbitrariness in the exact nature of the contingencies attached. Critics have regularly protested that funding denial rests upon the unfair strategy of ‘bait-and-switch’, and have claimed that it establishes precedent for the limitless exercise of federal power. On the other hand, it has proven a useful instrument for social policy implementation in cases where more conventional methods have failed. Critics have charged that funding denial is discriminatory in practice, applying only to the vulnerable, politically and by their strong dependence upon government aid. On the other hand, it is a potentially effective means by which at least certain groups can be induced to act in a manner appropriate for the achievement of a desirable diffuse social good, and half a loaf is often preferable to none at all. Critics have asserted that funding denial infringes upon traditional prerogatives and individual freedoms, permitting the aggrandizement of federal authority through devious means. On the other hand, it is quite normal within budget politics for the recipient of government money to aggressively seek maximum discretion over its use, and for the grantor of that money to impose constraints in the pursuit of the public interest. It would seem that support for the oblique funding technique depends largely upon one's view of the diffuse social good pursued. Liberals and conservatives alike, although for different policy ends, have found it a useful instrument in the federal repertory. The more important the end and the greater the demand to achieve it, the less American legislators appear to be deterred by the device's potential limitations. Nevertheless, something more systematic can be said. American statebuilders have always sought to construct institutional forms sufficient to the policy task yet with recognition of the abiding national fear of bureaucratic authority and the preference for private organization and community government.⁵² American liberal ideology posits a state apparatus imbued with a monopoly of legitimate force which nevertheless exists to serve private interests without dominating them. Capitalist economics and constitutional rights establish relatively protected spheres for independent behavior. The state, even when acting on behalf of a clear social good, is simultaneously committed to maintaining a balance with civil society, which inherently limits its dominion and reduces its policy-making capacity. Turning specifically to budgetary instruments, the growth in federal spending over the 20th century is usually taken as an indicator of the increase in central government power. A larger budget implies control over a greater percentage of social resources, extracting more funds from primary earners in the marketplace and reallocating them to serve publicly determined ends. That power, however, is far from absolute. The American state is dependent upon a flourishing private sector for the revenues it expends, and is dependent upon cooperative private actors for the policies implemented through the budget to have their desired effects. Government, in essence, manipulates money that it directly controls in order to influence behavior over which it lacks direct control. This is the wellspring of the ambivalence intrinsic to oblique funding denial. The device is used when lesser means are deemed insufficient, for they would not induce societal actors to bear the concentrated costs of social reform, but when stronger ones would invade traditional state government preserves or require a considerable expansion of judicial power. Coercion is the expected means when government seeks to implement policy ends over an unwilling population. However, in many policy areas, the federal government is relatively weak in its ability to apply coercion and is often averse to the very notion. The American commitment to constitutional federalism and to individual rights significantly circumscribes the power of central dictation. Self-restricted by the rules of its own political system, the federal government must, if it wishes to be effective, then turn to somewhat novel and incomplete instruments. As a policy instrument, funding denial rejects the subservience of pure incentives, placing the burden of proof on potential recipients to show that they have fulfilled stipulated requirements and thus are deserving of funds. Yet denial also suffers strict limitations, as it is constrained by the populations that are susceptible to its leverage and by the extent sanctions actually can be applied. The consequence is a policy dynamic in which the federal government seeks to exercise the greatest possible influence consistent with the structured separation of state from society and of central from local government; and in which the subject group seeks to preserve the greatest possible freedom of choice consistent with support for the federal government's diffuse social policy goal. The dynamic, which engenders intense political controversy and gives rise to dramatic rhetoric, must not be thought the product of faulty policy design. Rather, it is inherent to the logic of an implementation means founded upon the attempt to achieve a complicated philosophical straddle. Ultimately, the American public has but three basic choices. It can revise its political system to greatly expand the power of the federal government. It can abandon the effort to achieve broad social goods when societal interests and local officials maintain sufficient autonomy to resist. Or it can continue to experiment with the awkward instruments of central government leverage. With full recognition of the dangers of abuse and of discrimination, and with full awareness that the results will be less than ideal, social reformers must consciously work to expand the middle ground. Public policy is not just the product of state-and-society relationships. It also reflects the form of those relationships. Ironically, oblique funding denial, for all the appearance of imperious power, is an expression of the institutional tensions fundamental to a liberal political regime. It is a natural consequence of the distinction between central state superintendence but private and local responsibility that is so heralded in American ideology. Funding denial, a complex federal policy instrument which simultaneously leads opponents to claim arbitrary manipulation and supporters to doubt enforcement adequacy, must therefore be seen as a systematic product of the society that invented it. with the assistance of David M. Dudar