Rules Work….Mostly

By Mike Koetting February 7, 2021

The pandemic has a way of putting a spotlight on things that otherwise are sufficiently in the background that we don’t have occasion to think about them.

Given the recent accounts of various entities trying to create operational rules for distributing vaccines, I started thinking about the nature of rules themselves. Not exactly the question of how to distribute vaccines—although that is of course interesting—but more the underlying nature of rules. I was struck by the fact that whatever the choice, it would be imperfect. Not just because there are arguments for alternative choices. There is also the reality that the very nature of making rules for vaccine distribution will no doubt create some individual situations that, from other perspectives, seem patently nuts.

By itself, this is hardly a newsflash. Any of us who has been in a position of authority knows that whenever there are rules, at some point we will wind up in a situation where enforcement of the rule seems petty or artificial. Even as parents, we issue edicts that sometimes come back to us in unforeseen ways that put us in awkward corners.

But as a society we often lose sight of how the ubiquity of this problem affects government and policymaking. I’ll bet every one of us has, at one time or another, listened to the account of some government action and rolled our eyes at how arbitrarily stupid it seemed. To be sure, sometimes it was. But sometimes, perhaps often, it was simply the consequence of picking a policy and enforcing it. As an administrator of Medicaid, there was more than one occasion when enforcement of a policy that I knew to be the right policy forced me to grit my teeth because it was leading to an unfortunate outcome in some individual case.

California, for instance, has adopted a very strict approach to dispensing Covid vaccines. A friend there couldn’t register to get the vaccine because she isn’t quite 75 years old–even though her husband had just been discharged from the hospital and was at high risk. When drilled down to the specific, I’m not sure this makes sense.  Nevertheless, I am very sympathetic to the state officials who needed to make some rules. And whether the line was drawn at 75 or 65 or 53 and two months, problem situations will arise at the margin. It is the inherent nature of rules.

Some people argue that problems result from federal government overreach. Nope. Problem is exactly the same when the policy making is delegated to the states. (All the specific vaccine rules are up to the states and I have yet to hear anything but complaints about either the way this or that state is doing it or the difficulty about how to make sense of the overall situation when different states have different rules.) Same for cities. The fundamental problem is not the locus of the rule-making. It is simply that rules can’t anticipate all situations.

On the other hand, life in a society without rules descends into chaos. As ugly as the vaccination process might seem, imagine what it would be like if available doses were offered on a first—come, first-serve basis. Moreover, as a society we believe–correctly in my opinion—that we can do better than chance by setting priorities and using those to guide our rule making.  If older people are at greater risk, it makes sense to use scarce doses to vaccinate them, even though that means others have to wait.

Rules also serve to instill trust in the society. If society follows democratically established rules, there is lower likelihood that people with less power or less wealth will get pushed aside. In a large, dense society, daily life depends on enough social cohesion for people to believe it is not war of all against all. The existence of fair rules is an essential element to convince everyone there is a place for them in the tent.

Of course, this does not always work smoothly.

• Choices about priorities will seem to some to conflict with generating social cohesion. An obvious pandemic example is a decision to prioritize vaccine distributions to areas with high minority populations because of the much higher fatality rates in those areas. Non-minority members may see that decision as an attack on social cohesion.
• Some people simply don’t want to be bound by anyone else’s rules, certainly not an impersonal government entity. This has always been a problem in America, but in recent years it has been exacerbated by groups who have characterized any limitation of personal freedom as illegitimate government action. This has obviously contributed to the sense of social disorder now plaguing the country.

Addressing these issues is essential to maintaining our rule of law. Recent “rule of law” discussions have focused on the big issues, like respecting elections. But the cracks in our society start when people lose confidence in the little ones, the everyday policies that we don’t think about until they impact us in an adverse way. Once people convince themselves that those rules are illegitimate, they become more likely to see other rules as illegitimate.

There are no easy ways to grow trust that rules, despite their inherently difficult border lines, are on balance beneficial. Several things seem essential.

Communication. This has to happen both at the macro and micro levels. With regard to specific rules, there needs to be communication about how the policies got set, what trade-offs were considered, and why specific choices were made. Most federal and state rule-making processes do a reasonable job of outlining these considerations, But it is unlikely that the specific thinking about most policies is going to trickle down to the people who are impacted by them, nor are they usually in any mood to hear it if they feel adversely impacted. That is why there needs to be some kind of fundamental education about the nature of rules. It may be just as essential to learn this as part of civics education as to learn how the formal structure of government is supposed to work.

It may also be the case that to the extent there has been broad involvement in the setting of specific policies, the more likely the policy itself and the discussion around it will be accepted. While this is not practical for every policy, policy-makers have a responsibility to find ways to get policy feedback outside the narrow, prescribed channels and pay attention to that feedback. Along those lines, it is necessary to hunt out and eliminate rules that are, accidentally or by design, discriminatory. Of course, this is complicated because not all groups have the same idea of what is “right”—but that is exactly why two-way communication is so important.

Competence. Painfully obvious. But it still bears repeating. Policies that are not well administered exacerbate every conceptual problem and destroy trust in the rules themselves. Sometimes this is due to low competence levels among government employees, but it is often the case that legislative bodies lose sight of what it takes to effectively implement a policy, not giving enough time, enough resources, or ability to do the longer-term planning that turns out to be essential when the inevitable unexpected arrives. (If a state hasn’t invested in keeping its state Unemployment Insurance computers up to date, it may be difficult for that state to appear to be following the policy fairly—or at all—when swamped by a pandemic.)

Enforcement. Effective rule-making requires impartial enforcement. The point of the rule is undercut if it is not enforced. But enforcement creates a whole set of dilemmas similar to the inherent problem of rule-making. In Michigan there are a material number of restaurants openly flouting Covid rules. Shutting them down might make sense—but how much disruption should the authorities stomach to enforce? In Georgia, one hospital ignored state vaccine distribution guidelines and vaccinated school workers first. The state responded by suspending that hospitals’ vaccine distribution for the next six months. I don’t know if that was an appropriate response. But I do know, in the absence of any response, it would be hard to maintain consistency in the state’s distribution of vaccine.

The pandemic has heightened a long-standing series of questions about what to expect from government. My hope is that, while we understand how badly some government has performed, we also develop some appreciation of how really difficult it is to have effective, democratic government. And how much it requires a generosity of spirit from its citizens about its inherent difficulties.