INTRODUCTION
BEYOND SCHOOLHOUSE ROCK!
When California legalized marijuana use, the most visible change was the billboards. In San Francisco in 2017, suddenly it seemed like everywhere you looked a company you’d never heard of was plugging weed delivery to your door, fueled by investors eager to cash in on this land rush of opportunity. Half of the giant outdoor ads made no sense if you didn’t know pot culture, but that didn’t matter. Pot smokers were suddenly a coveted demographic in a city that often seems driven by commerce and novelty.
But there were other changes that were supposed to come with the new law, and they were as invisible as the billboards were impossible to miss. Thanks to Proposition 64, also known as the Adult Use of Marijuana Act, marijuana use would no longer mean prison, as it had meant for so many Californians for so long. Drug-related arrests had been a major source of the growth in the state’s prison population, which now numbered around 130,000. Reducing that number was a big hope of the law’s proponents, but current incarcerations were only part of California’s problem. There were also a staggering eight million Californians living with criminal records from prior offenses. Many of those people now carried felony convictions for an act the state no longer even considered illegal.
Having a felony on your record can make it very hard to get a job. Most employers won’t even consider you, and fields that require any kind of occupational licensing, from medical assistance to cosmetology, become off-limits. Former felons also can’t join the military. And it’s not just employment. With a felony record, it’s hard to rent an apartment or get a home loan. Veterans with felony convictions are denied certain retirement benefits. Students with drug felonies can’t deduct their tuition from their taxes, the way others can. Even minor pleasures like volunteering at your kid’s school are off the table. Researchers have identified thousands of “collateral consequences” of having a criminal record.1 That’s a lot of barriers to building a stable life, and it seems especially unfair if you’re someone who did time for something that’s no longer even a crime.
One of those barriers, ironically, involved the nascent marijuana industry itself. People with felony controlled-substance offenses can’t be licensed to sell in any capacity: they can’t run a marijuana business, they can’t work in a marijuana warehouse, they can’t deliver pot to customers’ doorsteps. That meant this rush of opportunity was limited to either people who never used weed or those who’d never been caught. Whites and people of color use marijuana at approximately the same rates, but people of color went to jail for it nearly four times more often, which meant that the new law would create opportunity disproportionately for white people.
Recognizing this, Prop 64 made past marijuana offenses eligible for expungement from people’s criminal records. Once expunged, those convictions wouldn’t show up on the background checks that kept these folks out of most jobs and limited their activities. But while this sounds like a simple matter of changing a field in a database, it was far more complicated in practice. The information needed for expungement could span court records, records from the arresting agency (which might be local, state, or federal police), jail and prison files, prosecutors’ records, and probation records. If you had a conviction in more than one county, you would need to get all of the relevant materials in all the applicable jurisdictions. From those documents, you’d need to identify the docket numbers from your cases, then figure out which forms to complete and where to find them. You’d need to draft motions for each case and attach copies of the verified criminal history to each motion. You’d need to find out how many copies to make of these documents, where to send them, and how to pay the associated fees.
Prop 64 made hundreds of thousands of people statewide eligible to have their felony convictions expunged. But given the marathon of logistics, hardly anyone even tried to start the process. A year after the passage of the law, the San Francisco district attorney’s office had a whopping twenty-three petitions to seal marijuana-related records. Not even twenty-three expungements: twenty-three people who’d gotten as far as filing the initial paperwork.
Voters had spoken. The law had changed. Marijuana was no longer a crime. The city was abuzz with a new chance for entrepreneurship. But the previously incarcerated were still felons. For them, things were the same as ever.
* * *
FORMER FELONS ARE by no means the only ones stuck between the promise of new laws and their reality. Just ask doctors who take Medicare.
Medicare, the federal government’s medical insurance plan for seniors, has achieved remarkable success since its inception in 1965, when 48 percent of the elderly lacked health coverage. Today just 2 percent do. In approximately the same period, the United States has enjoyed a fifteen-year increase in life expectancy, in part because of the greater access to care that the program provides. These are enormous accomplishments. But Medicare (and most of the rest of our health care system) has also been criticized for its payment structures and the sometimes perverse incentives they create. Most doctors get reimbursed simply for the number of patient visits they handle, procedures they perform, and tests they order: they get paid more when they do more, not when they do what would most help their patients. The US spends more than twice as much per capita on health care as most other developed countries, and Medicare is a big part of that discrepancy.
It would make sense to instead pay doctors more for better patient care and better outcomes, an approach known as value-based care. In 2015, Congress passed a major overhaul of Medicare meant to move the program in that direction. For the team within the Centers for Medicare and Medicaid Services (CMS) responsible for implementing the new law—writing the regulations it called for and designing the systems that providers would use—this was a chance to be part of getting health care in this country right. But for the program to succeed, the people who provided that care, from doctors and nurses to medical office administrators, would need to trust it. And as the CMS team found, among the many feelings that providers had about the new law, trust was not one. Fear, anxiety, and even anger, yes. But not trust.
One doctor in a public feedback session told the team: “As a practicing clinician for thirty years, I can honestly say that it’s time to leave the profession if we stay on the current trajectory.”2 He had already spent a great deal of time struggling to understand what Medicare wanted from him: choosing among Medicare’s assorted programs without being sure what effect the choice would have on his practice, submitting data about his patients without knowing if it was in the proper format, always worried that he and his team were making terrible mistakes that were going to mess up the payments and ruin his practice. None of this had anything to do with why he’d become a doctor; none of this helped him give his patients the best care he could. And now the rules were going to change again. The only thing he hated more than the current system was the thought of having to learn a new one.
He was not alone. Another doctor put it this way: “The federal government wants me to spend over $50,000 for an electronic health records system that doesn’t work, takes more time for me and my staff, [involves] voluminous incoherent regulations.… It seems like the best course for solo practitioners that are over fifty-five is to either retire, close the office … or just collapse the practice and lay off most of the staff and only see private pay patients. Good God!”3 A survey found that almost 40 percent of physicians in solo and small-group practices predicted an exodus from Medicare within their ranks. Many of those were in rural America, where fewer options for Medicare patients would be much more harmful than in a dense urban area.
Congress had passed the new law in order to improve the care patients received. But something was going awry in the course of moving from the written words of an act of Congress to its implementation by the administrative agency. Instead of improving care, the law risked driving doctors to stop taking Medicare patients entirely, thereby restricting patients’ options and access. Republicans and Democrats had certainly disagreed on various provisions of this law, but neither wanted this outcome. If something didn’t change, the law’s effects on American health care would be the opposite of what its authors, and the people they represented, had in mind.
* * *
CHANGES IN MEDICARE reimbursement rules aren’t the kind of thing most Americans pay attention to. But you couldn’t miss what happened when our government tried to respond to a massive global pandemic.
In early 2020, the novel coronavirus that had ravaged China, Italy, and other countries began sweeping across the US. The virus was devastating: by the end of the year it had killed over 385,000 Americans and had had significant long-term health effects on countless more. But its impact went far beyond the havoc it wreaked on the infected and their families. The shelter-in-place orders needed to slow the virus’s spread cost millions of people their jobs, and the health crisis was quickly joined by an economic crisis.
We knew little about the virus in the early months, which made the public health response challenging. But we did know about economic crises and how to mitigate their damage. While the scale of the pandemic’s impact was almost unprecedented, the US economy experiences regular cycles of boom and bust. This is why we have programs like unemployment insurance—to reduce both human suffering and a further slowing of the economy. When COVID hit, the scale of job loss merited more than the regular aid. Congress authorized not only increased payments for regular unemployment insurance claimants but also special assistance to cover gig workers, a higher child tax credit, food benefits to help feed children who would otherwise have had access to free school meals, emergency rental assistance to keep people from losing their homes, and direct stimulus payments, among other measures.
Millions of Americans were grateful for Congress’s willingness to act in this time of crisis. But many of those same millions heard the news that relief was coming their way and then waited. And waited. And waited. By April 2020, about half of households had received their stimulus checks.4 By May, a survey of food-assistance recipients found that only 15 percent had received the pandemic supplement.5 By June, only half the states had started delivering the food benefits for school-age children.6 By July, the IRS had caught up significantly on stimulus checks, but an estimated five to ten million households were still waiting, and as many as six million remained blocked from filing taxes (and claiming critical tax credits) due to erratic behavior of the IRS’s online tools.7 By August, with a moratorium on evictions about to be struck down, only 11 percent of the $46 billion authorized for emergency rental assistance had been distributed.8
But the program that garnered the most ire was unemployment insurance, perhaps because it was well established before the pandemic and therefore expected to have the benefit of existing operations. By September 2020, millions of people who had applied for unemployment benefits in March, when the first shelter-in-place orders came down, were still waiting to hear back. Some didn’t hear anything until well into the following year, while others who did get a response got stuck in a bureaucratic nightmare of confusing messages, requests for further documentation, and call centers that seemed never to actually answer calls. Suddenly, lawmakers in many states were reminded that their state-run systems for administering unemployment benefits were sorely out of date and called for immediate modernization. But twenty-two states had already “modernized”—meaning they had moved from decades-old mainframe computers to the cloud—and they fared no better.9 Either the problem wasn’t the out-of-date tech or the modernization efforts had failed. The US Department of Labor is still trying to sort out today exactly what went wrong and what might be done to avoid these meltdowns in the future.
All told, the various pieces of legislation that authorized the relief programs, including the CARES Act, the American Rescue Plan, and others at the federal, state, and local levels, are impressive in their scope, and their provisions no doubt saved countless lives and prevented a much worse disaster. But to those stuck between the promise of relief and the seeming impossibility of actually receiving it, the news of help coming from Washington felt like an epic bait and switch. Members of Congress weren’t wondering where their next meal would come from, but they weren’t happy either. They had put the pedal to the metal on economic relief and expected the engine of government to leap into action. Instead, their offices were overwhelmed with calls from desperate constituents who were on their last packet of ramen with nowhere to turn—and even the members who’d argued for a smaller relief package were angry. For once, thanks to an extraordinary crisis, Democrats and Republicans had (mostly) come together and acted with speed and resolve. But their best intentions were being dashed on the ugly rocks of implementation.
* * *
WHEN I FIRST learned that hardly anyone in California was likely to get out from under the burden of a marijuana felony despite a new law, I was a few years into what would become a long journey through those rocks of implementation. Haunted by the sense that government’s struggles to participate in the digital revolution spelled real trouble for an already weakened institution and threatened already declining faith in both government and democracy, I had founded an organization called Code for America, which enlisted technologists to work with local governments. We’d had some successes as a fledgling nonprofit, enough to be growing fast. But my colleagues and I also spent five years realizing how much bigger the problem was than we had known. City and county governments all across the country partnered with us to improve the quality of their technology and design, but everywhere we went we found ourselves dealing with cases where policy results had failed to live up to expectations.
In 2013, a few years after I started Code for America, Todd Park, the chief technology officer of the US under President Obama, recruited me to be one of his deputies. Although terrified by the enormous task at hand, I asked my board for a leave of absence and warily accepted for a one-year term. I promptly relearned the lesson I had learned at Code for America: the problem was even bigger yet than I had realized. Three months into my new job, I watched the much-heralded launch of healthcare.gov, which would administer Obama’s signature policy initiative, the Affordable Care Act. The site immediately crashed. With millions to enroll and hundreds of thousands attempting to log on at any given moment, it managed on its first day to serve a total of eight people.
While getting the site to work absorbed practically every waking moment for my boss and many of my colleagues, my job in DC took me farther afield. At the Departments of Education, Defense, Labor, Treasury, and Veterans Affairs—everywhere, really—I found the same glaring gap between policy intentions and actual outcomes. It was a sobering lesson in how government really worked, so different from the simplistic and incomplete model I had been taught.
Like many other Americans of my generation, I learned how a bill becomes a law by watching Schoolhouse Rock! In one three-minute segment, an adorable singing bill—literally a piece of paper rolled up and tied with a ribbon, but with arms, legs, a face, and Jack Sheldon’s robust and soulful voice—starts out bored and neglected on the steps of the US Capitol (“Well, it’s a long, long journey to the capital city, and it’s a long, long wait, while I’m sitting in committee”). He finally makes it through all the steps of the legislative process, and the pin on his red sash magically becomes a wax seal with the word LAW stamped into it. Everyone celebrates! The tune was very catchy, and I knew the song by heart, but none of it meant that much to me until I understood what was in those bills. The Civil Rights Act, the Social Security Act, the Voting Rights Act … I eventually got the message. This is how change happens. This is how we fulfill the flawed but hopeful promise of America: we make it better over time, adjusting our laws to align more fully with our values and adapt to an ever-changing world. It’s not a linear process, and laws can do things you think are good or things you think are bad. But ultimately, I believed, passing legislation and adopting new policy is how we improve our country.
It was the mid-1970s when I was watching that bill on Capitol Hill on our fuzzy black-and-white TV set with a giant antenna. Forty-five years later, thanks to a massive digital revolution, we can watch pretty much any video we want any time we want on a phone or tablet; “I’m Just a Bill” has over a million views on YouTube.10 And as that revolution gave rise to social media (and in part because of it), Americans have become more divided than ever about which policies we should enact, about which of those needy animated little bills should make it through the journey to become the law of the land.
Yet despite increasing partisan gridlock, plenty of those bills have made their way into law. The 116th US Congress, which met during the last two years of Donald Trump’s presidency—when Democrats held the House and Republicans held the Senate—enacted 344 pieces of legislation (1,229, if you count those enacted by incorporation into other bills), including the largest economic stimulus package in US history. Add to that the legislative output of fifty states and over thirty-five thousand local governments, plus propositions and other measures that in twenty-four states can become law through the collection of signatures and passage at the ballot box. Add to that executive orders and their state and local government equivalents, plus countless policies, regulations, and rules enacted by administrative agencies and other bodies under the authority of Congress in accordance with existing law. Even when Congress is supposedly incapable of anything, there’s quite a lot of lawmaking going on.
Each of these documents is transformed the moment it is enacted, becoming more than just words on a page: backed by the weight of our representative democracy, it now compels action. When the words of a bill become law, they are suddenly magic, or so I believed. But the Schoolhouse Rock! video ended when a bill was passed. What was supposed to happen next was not clear to my preschool brain, but I now understand that somewhere, someone (actually, lots of someones) must figure out how to implement and enforce it. Once regular words become magic words, someone has to write more words about how this new rule will work, and someone else has to make or amend forms that people can use to interact with the new rule. These forms become records, which have their own magic. It says here that you are married. It says here that you are eligible for health care. It says here that you must go to jail.
In the past, this all happened on paper. Stacks of paper with words and numbers and official seals got you things, like money or food stamps or even freedom. Now, though, those records are rarely magic without a digital element. Today, if someone tells you, “It says here you are a felon,” it’s usually a screen they’re looking at. Conversely, if the law changes and the act that made you a felon is no longer a crime, nothing is really different for you until the database is updated. The magic of law is now inextricably tied to the bits and bytes of computer code.
Of course, the government is not alone in maintaining databases. Every one of us is a record in thousands of them, mostly kept by private companies. Every time you make a purchase with your credit card, click on a link in an email, or glance at a photo on Instagram, part of your record updates in some database somewhere. It happens dozens of times a day to most of us, whether we’re working, shopping, managing our finances, engaging in causes we care about, or just texting our friends. Sometimes these updates help us, like when we pay a credit card bill on time and our credit score ticks up a notch. Sometimes they can hurt us, as when companies use all this data to engage in discrimination or to target us with ever more insidiously effective ads. But whether for good or for ill, the essence of the digital revolution is that it has become easier to implement ideas of all kinds—business, cultural, and social.
Inside government, however, the digital revolution has played out very differently. Even as our expectations about the immediacy and accuracy of services have skyrocketed, the implementation of laws has become anything but easier. The famous slowness of bureaucracy is a key reason, but all too frequently, what now widens the gap between policy intentions and actual outcomes is the messy task of implementation through digital technology, and the ways government makes working with that technology uniquely complex. It has gotten so difficult to deliver on the promise of legislation that the magic words are losing their magic. Today, when the Schoolhouse Rock! characters cheer our little bill’s becoming law, they are celebrating prematurely.
* * *
THERE IS PLENTY of blame to go around when policies fail. Intentional sabotage by opponents of a policy does happen, and there is a rich history of interest groups lobbying for administrative burdens that purposely make government services harder to use.11 But no enemy of California’s record expungement designed the process to keep former felons from relief; no enemy of Medicare doctors was trying to drive them insane with confusing data systems; no enemy of the American economy sought to keep stimulus money from reaching millions of households. If anything, all those failures stemmed from a lack of design. And all resulted in outcomes that no one wants—not the left, not the right, and not the average American who identifies with neither. The reality of occasional sabotage should not blind us to our self-inflicted wounds.
To be sure, there have also been reasons for celebration. My White House colleagues worked closely with hundreds of dedicated public servants at the Centers for Medicare and Medicaid Services and eventually got the healthcare.gov website to work. For my part, I left DC having laid the foundation for a new unit within the White House called the United States Digital Service (USDS), which helps federal agencies make better use of technology. When I returned to Code for America, one of the goals we set was to bring the magic words of decriminalization laws to life through a project called Clear My Record. By helping dozens of state and local governments translate legislation into changes in databases, it has helped millions of people shed the burden of their outdated convictions. Code for America and its partners have also made it easier for people in need to access our nation’s social safety net, to send their children to school, and to receive much-needed tax credits. With and without our help, many public servants across the country are finding ways to close the gap between policy intentions and real-world outcomes.
Copyright © 2023 by Jennifer Pahlka
