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By Jonathan Rauch, National Journal
© National Journal Group Inc.
Friday, Aug. 11, 2006

Is St. Bernard Parish's bureaucracy fatigue incurable, treatable with smarter bureaucracy, or susceptible only to fundamental reform? The answer is yes -- partially -- to all of the above.

Students of public management have been pondering bureaucratic behavior for years, and few of St. Bernard's complaints would surprise them. For example, the endless approvals often required for ostensibly simple and urgent tasks are typical of what the public-choice school of economics (which concerns itself with perverse incentives and self-interested behavior in the public sector) has taken to calling the "tragedy of the anti-commons."

The classic case of the "tragedy of the commons" is overgrazing or overfishing: When too many people have unrestricted access to a common asset, they overutilize it, impoverishing all. The tragedy of the anti-commons, says Peter Leeson, an economist at West Virginia University, is the obverse: When each of many bureaucrats can veto or delay a proposal, decision-making authority is underutilized. "And this is an inherent problem with bureaucracy, where you have so many layers of decision makers, each of whom needs to sign off on a decision."

The only real solution, Leeson suggests, is to circumvent bureaucratic decision-making by privatizing as many disaster-recovery tasks as possible. "There is no way, within the framework of government, of directing the response effort and simultaneously eliminating bureaucracy," he says. "Bureaucracy is government's way of doing things properly. It disciplines their internal decision-making process. But it also stalls or slows things -- or completely stops them, in some cases."

That may be, but Michael Brown, who was director of the Federal Emergency Management Agency until he was fired just after Katrina, argues that the system can and should work better than it does. He is doing pro bono consulting for St. Bernard. "They're at a virtual standstill, which I find unconscionable," he says.

The parish government has its problems, Brown allows. "But if I had to put it on a scale, the parish is 30 percent at fault, the feds are 70 percent at fault." He says that FEMA and other government agencies should take a more vigorous and flexible approach, telling the parish, "We need you to approve X and Y and Z, and we'll waive environmental reports, get buildings up, and get you functioning as a parish again."

The FEMA director has considerable leeway under the Stafford Act -- the federal law governing disaster relief and recovery -- to bend or suspend rules that compromise public health and safety, Brown argues. Historic preservation? "Waive it." Wrecked houses and debris piles, he says, "are unquestionably -- I would challenge anyone to argue with me -- a public health and safety hazard that needs immediate attention. At some point, you have to be reasonable here. Historic preservation is wonderful, but public safety takes priority."

Brown says that FEMA officials understandably worry that their decisions will be second-guessed by their bosses in the Homeland Security Department and by Capitol Hill. He argues that FEMA needs to regain the independence it lost in 2003, which allowed FEMA's director to go straight to the White House for permission to bend the rules, thus bypassing the bureaucracy and providing a political heat shield.

The difficulty is that disaster recovery, unlike disaster relief, stretches over months and years. A FEMA director who bends or overrides the rules not just for a few days or weeks after a hurricane but for months thereafter is likely to be hauled before angry congressional committees, denounced and sued by interest groups, and hammered in the media for playing fast and loose. A more systematic approach would rely less on improvisation and more on legal and regulatory preparedness.

The idea is to identify and ameliorate legal and regulatory bottlenecks in advance -- figuring out, says Ernest Abbott, a FEMA general counsel in the Clinton administration, "what kinds of things stop working when you have a mega-catastrophe, so that compliance with the existing law is no longer workable. I think it's critical." Abbott now operates a Washington legal practice called FEMA Law Associates.

Emily Chamlee-Wright, a Beloit College economist who is studying the Katrina recovery for George Mason University's Mercatus Center, suggests that the government could pre-position alternative regulations for extreme disasters and swing them into place on command -- say, for a year. Bureaucrats would no longer be torn between applying and circumventing inapt rules; local authorities would know what they were dealing with; and policy makers could set sensible (or at least more-sensible) priorities well in advance of a crisis.

"I think we're probably just getting started" on regulatory preparedness, Abbott says. Not started at all, would be the view from St. Bernard.

"If you say nothing else," begs Craig Taffaro, a St. Bernard Parish council member, "tell your readers about the inadequacy of the Stafford Act to deal with the issues we're facing. It is not an appropriate statute for a disaster of this magnitude. It handcuffs recovery and it forces waste. When you have to go through five layers of bureaucracy to get a tree branch removed, something is wrong."

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