A Government of Processes, Not Policy Outcomes

A Government of Processes, Not Policy Outcomes

A familiar claim about our system of government is that it is a government of laws, not men. Whether we live up to that noble description or not, and in what domains, it remains a standard against which much of what we do should be measured.

Perhaps there ought to be a similar phrase about means versus ends, something to the effect of “We are a government of processes, not policy outcomes.”

One reasonably could assert that this is the essence of President Obama’s brief official statement supporting his veto of the Keystone XL pipeline legislation. President Obama claimed that his veto was not related to the merits (economic, environmental or political) of the Keystone XL pipeline. Rather, the president said he vetoed the bill because the bill constituted an inappropriate intrusion by the legislative branch into an established executive branch process. In order to protect the legitimate authority of the executive branch, he vetoed the bill.

Whether that is or is not a “correct” interpretation of the relative authorities of Congress and the president on this matter is not particularly relevant. What matters, ultimately, is that the president has the authority, under our system of government, to wield his veto pen this way. Similarly, Congress has the authority to override his veto and make this bill law whether the president likes it or not.

Of course, there’s are processes for all of these things. There’s a process by which the bill cleared both Houses, and a process that put it on the president’s desk. There’s also a process by which Congress can override the president’s veto. (Given the nature of that process, an override seems unlikely.) And all of the important players in this drama (no matter what their rhetoric might say to the contrary) ultimately will accept that if the process means this bill does not become law, then, well, it doesn’t become law.

Because we are a government of processes, not outcomes.

It actually wasn’t Obama’s veto that got me thinking about this. It was an editorial in the Wall Street Journal criticizing the head of the FCC for attempting, by regulatory means, to preempt state legislative efforts to . . . well, to preempt municipal efforts to provide broadband.

My first reaction to the FCC maneuver, admittedly, was enthusiasm. I firmly believe that, in the 21st Century, providing public access to broadband services by public means may be a reasonable investment of taxpayer dollars, no different today than putting lights on streets or sewers under them. Internet access has become as essential a utility as these more familiar public services. Local governments ought to have the option of providing broadband as they do these other utilities.

But reading the editorial’s logic and skimming a 2004 Supreme Court decision on which it was in part based made me stop. Because while I really like the implications for municipal service of the FCC’s action, I must confess that it raises serious concerns about preserving the processes by which our federal system is sustained.

In effect, what FCC action (or federal action more generally) in this area would do would be to say to states, in this area (broadband provision), you don’t have the authority to tell governments under your jurisdictional umbrella what they can and cannot do . . . no matter what the state constitution your citizens adopted says.

So . . . A set of federal appointees will overrule the authority of voters in all 50 states for the sake of what I think is a “good” policy. And I’m okay with that?

I’m not.

I oppose state efforts to prevent municipalities from providing broadband service. I think it is counter to the public interest and reflects either a profound misunderstanding of the role of broadband in today’s economy and society or the undue influence of the telecom companies in the state capitals where it has been seriously considered or adopted . . . maybe both.

But we need to win this argument according to the rules by which these

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arguments are litigated, not by inviting Uncle Sam to intrude into the relationship between the citizens, their cities, and the state.

There’s a process for that. We understand it well. And it’s the way we need to win this fight.

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