Saturday, July 17, 2021

COVID and the New Segregation

 

It should be cut and dried. We have COVID, we have anti-COVID vaccine in copious amounts, it's just a question of time (short!) until virtually everyone is vaccinated and the contagion is gone, over, out. You have to handle the hard-to-access populations, and you have to have controls on incoming, but we have good testing, we are rich enough to afford the materials and the personnel. It should be cut and dried.

But, amazingly, it isn't. You would think that all the American carnage, the sickness and the deaths and the horrible pictures of hospitals filled with COVID patients and respirators and loved ones saying goodbye on cell phone while nurses cried listening and some nurses and doctors even killed themselves, you would think that there would be no one and all who doesn't recognize a gift from God when it is delivered, and it's name is Pfizer or Moderna or Johnson and Johnson. You would think the gift would be obvious. And it's free. And the government and others are breaking their backs to make it easily available. You would think it was obvious. Hell, it is obvious, what could be more obvious? It's sure as hell more obvious than thinking you are drinking the blood of Christ and eating his body when you are kneeling in the church, just to grasp randomly at things that people believe.

But, there are the ignorant, there are the charlatans, there are the greedy, there are Fox and Republicans and Rupert Murdoch and you would think they would feel guilty at the very least but maybe they don't. People are calling them cynical. I think cynical is letting them off pretty easy. It's evil, is what it is, is what they are. If lying about a gift from God that will save your life and the lives of others you come into contact with, if lying about that isn't evil, then what is? There is evil in the world, that shouldn't be a controversial statement, Dr. Pangloss is not generally held up as an admirable figure, this is not the best of all possible worlds, and if you look what they are doing with the COVID vaccine you really have to wonder how the world has made any progress at all, and maybe that's debatable, but I think we have, and not just because we got to the moon, but because as confounding as it is to see gobs of people refusing gifts from God, there are more who aren't and their lives are being saved and science is the hero and I think we have made lots of progress, but it's also astonishing that we have, because stupid and evil exist in such numbers that I never realized, but I guess I should have.

I don't want to let the non-vaxxers off the hook by saying they are misled and victims, and that they have not been educated enough to know who and what to trust, and to say that everyone can't be smart, and to say that our health care and education systems have let them down. And I don't want to treat them with respect for their choices, although I do think everyone deserves respect as a person with some exceptions, because we should not respect the evil-doers like Carlson and Murdoch and Trump et al. as coequal persons – just fuck them, I figure, let them go straight to hell – but in the end it doesn't matter. What we have to decide on now is a very practical matter – what do we do with the anti-vaxxers now that COVID has not been eradicated and the virus is upping the threat? What do we do?

Here's what I think we should do. We should treat this as a problem of competing rights. There are those who have the right to be safe, like you and me. And there are those who want to claim the right to remain unvaccinated, for whatever reason they want to, but they defend their right to choose as an element of personal freedom. OK, I say, I think it's ignorant, but knock yourself out. You want to make yourself vulnerable? I guess that's your right. You want to make others vulnerable because of what you are choosing to do? No, that's not your right. I have a competing right, to be safe. How are we going to adjudicate our competing rights?

Well, one thing we know how to do in this country is to segregate. Let's use that knowledge to adjudicate the competing rights. Let's divide all public areas – commercial, governmental, what have you – into those which guarantee that all staff and customers are vaccinated, and into those where there is no such guarantee. We can call the first Safe Areas, with a sign: We Are Threat Free! We can call the second Freedom Areas, with a sign: Do You Feel Lucky?

Some facilities can be all one or all the other – a restaurant, for instance, could be all Free or all Safe. Some facilities are less easy to be one or the other – think DMV – and would need separate entrances and exits and hermetically-sealed areas to conduct business.

Some facilities could be very safe, and require everyone to present or to have on file the vaccination documentation. They would be Completely Safe. Others would go on the honor system. They would be We Think It's Safe. The deniers would just declare how daring they are and say, Take Your Chances.

We always need to balance competing rights, and safety vs. freedom is a frequent competition. When it comes to COVID, we have run into a buzzsaw of negligent and evil ignorance that requires us to recognize a claim of freedom where it wasn't clear we would have had to, but there it is. We can't do for COVID what we did for polio, and measles, and smallpox, because evil has gotten its toehold too far into society. So the next best is to keep safe those who want to be kept safe, and let the others make do with whatever they want to do with their freedom. We can't treat everyone the same, but at least with this kind of segregation, you can choose which group you want to be part of.

I guess being walled off from the stupid shouldn't be so hard to take.

Budd Shenkin

Saturday, July 10, 2021

America's Six Freedoms, A Guide To Our Disunity

 

America's Four Freedoms, Plus Two


Enemy or Opponent? Trumpism Vs. Americanism

A Guide for the Perplexed


American disunity is as severe right now as any of us can remember. It might be the most severe disunity since the Civil War. There is so much deep unrest, there are so many obvious threats to our basic means of governing, that there must be deep causes for it. Maybe the most profound is the correction we are making in traditional American racism and the associated displacement of a favored ethnic group, perhaps it is the ongoing economic pressure and mistakes in governing over decades, or there are other nominees as well. Or maybe new technical modalities have enabled dark, James Bondian, Rupert Murdochian, Koch brotherian forces to capture the country with lies, deceit and fear to an extent never before seen. It's complicated.

But what has not been the ultimate force behind our descent into discord and disunity has been a disparity of ideas. Despite Keynes' famous quotation about the primacy of ideas in history, most students of events would hold (in the tradition of Marx) that in this time of conflict, ideas are a secondary effect. Reason and reasonableness can be replaced by rationalizations to support basic economic interests, fears, emotions, personal advantages, tribal feelings, prejudice, a sense of justice in short, all the basic instincts to which man is heir. There are many, maybe a majority, who are never sincerely attached to ideals at all, who just want as much as they can get for themselves, who use arguments just to get what they want, and (since we are importantly driven by comparisons) who mostly want to be somehow better off than at least some others. And it comes as no surprise to recognize that there are politicians who are only interested in power and the various emoluments that office brings, who worship reelection, who function virtually as paid agents of their funders, and to whom democratic beliefs are only shibboleths they must mouth, and sometimes do not even understand.

But while all that is true, it does not mean that ideas are unimportant. In fact, I would argue that when we are under such pressure, our ideas are more important than ever. We need our ideas to clarify our cause to ourselves as well as others, even if we do not hope to persuade more than a few. We need the confidence in ourselves that clarity of thinking can give us, and we need to understand where we stand vis-à-vis the other side. Is the opposition simply our usual opponents with whom we can ultimately cooperate and compromise, or are they our true enemies, whom we must seek to defeat? We have to understand when we are disagreeing on basic principles, and when we have a common end and we are just arguing over means. In cinematic terms, do we share the same image of the Emerald City, the basics of our country, and are we just disagreeing over which Yellow Brick Road to follow, or do we differ on the nature of Emerald City itself?

In times of great division, we need to evaluate our ideas. This is what President Franklin D. Roosevelt did when he needed to unify a divided country to fight World War II. He looked back at the history to find our common ideals, and then used his communication genius to forge a necessary unity of purpose in the starkest demonstration of leadership since Lincoln. Finding those common ideals is what we need to do now, if not to unify to fight a war, at least to clarify our thinking about how divided we actually are, and to chart our course of action.


The Four Freedoms (Plus Two)

Roosevelt faced his problem of unifying the country as fascist Germany was overrunning Europe and World War II loomed, and as we were unprepared materially for war and our people and politicians were significantly divided. His organizational and political skills would take care of material preparation, but to unite the country in purpose, he needed his rhetorical skills. He articulated his conception of bedrock principles of American democracy, principles which stood in stark contrast to the fascists, in his State of the Union address on January 6, 1941. This was his Four Freedoms speech, identifying as our uniting principles Freedom of Speech, Freedom of Worship, Freedom from Want, and Freedom from Fear.

As a nation, we move forward through time, amending our values, and discovering where we stand at each moment. The first two of Roosevelt's freedoms were present in the vision of the Founders; the second two had been discovered more recently. If he were to give the speech today, 80 years later, I think he would have to add two additional freedoms to his bedrock list of four. The Civil Rights movement changed our basic concepts of ourselves permanently, so we need to add Freedom from Discrimination. The Civil Rights movement also identified what Roosevelt took for granted, as a fish is unconscious of the water in which it swims. Now that it is being attacked, we see the need to declare freedom number six, Freedom of Free and Fair Elections.

These Six Freedoms would seem to be a strong bedrock vision of our American Emerald City. If we look at them closely, it should help us once again to define the details of our own current values and their challenges, and it should also help us distinguish how deep our disunity really is.


Freedom #1: Freedom of Speech

Roosevelt was right to put free speech in the first spot – what could be more American than free speech? We see it as both a basic moral individual human right, and as an instrumental asset of society, letting ideas compete in a free marketplace.

The problem with free speech, as with every freedom, is balance. The traditional obvious example of free speech limitation is falsely yelling “Fire!” in a movie theater. We can disagree on current proposed limitations that might or might not be equivalent to yelling fire. Hate speech, for instance, or Holocaust denial – offending feelings is a common price to pay for free speech, but what about exciting prejudices that go beyond simply offending feelings, but which would lead to discrimination or even violence? Or what about denial of publishing by a major outlet based on expressed political views, or alleged views on misogyny, when there are other outlets, perhaps less prestigious, available? These are obviously upsetting and important issues, but at least for the present, they would seem to be boundaries that can be rationally discussed and disputed among opponents.

A more severe test of democracy than those arises from modern technologies. Today we are faced with the threat of the Big Lie, conspiracy theories and misinformation reverberating and promoting home-grown terrorism. Cable television and social media have created platforms living in the nexus of untruths, radicalization, and revenue. While we won't adopt the UK solution of a state institution, OFCOM, to banish lying media, self-regulation is a possibility, political norms could improve by informal pressure and elections, consumers could pressure sponsors of objectionable programs, antitrust agencies could arise from their long slumber to break up social media and conventional media concentration, the fairness doctrine could reemerge, and social media business models could be changed.

While it is not clear what must be done, it is clear that there must be something, because we face not only the threat of the Big Lie, but the threat to the value of truth itself. We regulate truth in advertising, truth in medical claims, truth in safety. We value truth as a basic human duty. Truth is so important to democracy, in fact, that we cannot abide the free-speech abusers, those putting profits over preservation of our values, and those perpetrating lies (or “alternative facts”) for power.

There needs to be agreement on this goal, even if proposed solutions will differ. Something must be done, because the Big Lie constitutes malicious use of a freedom against the freedom itself, which is intolerable. Defenders and proponents of the Big Lie and all the other constant lies spells enemy, not opponent. The Big Lie spells Flying Monkeys impeding the path to the Emerald City.

 

Freedom #2: Freedom of Worship

Even if Roosevelt's reference to a Christian-tinged God seems outdated today, American freedom of religion provided a stark contrast to the anti-religious fascists abroad (and the Communists, too, of course, which was papered over in favor of the-enemy-of-my-enemy principle). While he cited freedom of worship as a simple personal moral human right, the Founders were closer in time to European religious wars, and to the European power structure triad of king-aristocracy-established religion that America had revolted against. To them, keeping state and religion separate was a passion.

Today, ironically, the Freedom of Worship issue has returned to the table. Deeply held religious convictions are always a threat to civil government, as in the oft-repeated words of former Vice President Mike Pence, for instance, “I am a Christian, a conservative, and a Republican, in that order.” One is left waiting to see where “American” will appear in his list. It seems increasingly clear that several Supreme Court justices might be comfortable with a similar declaration. State support for private and religious schools, refusing to provide services for gay weddings or gay foster parents, prayers under public auspices, refusing to supply contraception because of religious beliefs, forbidding free entry to the country for Muslims, allowing religious services to contravene public health measures during a pandemic, and the intense fights on abortion rights – all test the validity of the line as it has been traditionally drawn. Linda Greenhouse observes that “Despite a rapidly secularizing society... the Court's majority … is reflexively choosing religious over secular interests.”

Does the Emerald City vision of separation of church and state hold? Clearly, the claim of the intense minority that we were founded on Christianity and Christian principles should prevail over the traditional interpretation of the constitution threatens our vision of the Emerald City. To Katherine Stewart, Christian nationalism “is not a social or cultural movement. It is a political movement, and its ultimate goal is power. It does not seek to add another voice to America's pluralist democracy but to replace our foundational democratic principles and institutions with a state grounded on a particular version of Christianity....”

We could still be opponents negotiating over the Yellow Brick Road, but we could also quickly become enemies fighting tenaciously over the vision of the Emerald City. The return of the old European problem that the founders thought they had solved once and for all would be bad news for the republic.


Freedom #3: Freedom from Want

Unlike the clear constitutional pedigree of the first two freedoms, Freedom from Want staked out new ground pioneered by FDR’s New Deal. The state's role in helping to provide the basic material requirements of life has now become our heritage. Roosevelt defended it both morally and instrumentally – a wealthy nation should care for the less fortunate, and democracy requires a secure populace without huge differences of means. In his speech he stressed equality, including access to jobs, civil liberties, pensions, unemployment insurance, and medical care.

The Lyndon Johnson years added to Roosevelt’s social and economic legacy. Although the conservative years of government from Reagan to Trump have led to the most unequal distribution of wealth since the Gilded Age, the basic social safety net has remained intact, and especially with the Affordable Care Act, has even been extended. It is impossible to say that this freedom is not now basic to America's conception of our Emerald City.

We can argue as opponents about the extent of help to be given and the specific path of the Yellow Brick Road. Medicare for All or extend our current system of health insurance? Free university for all, or targeted assistance? State owned housing or subsidized private housing for the poor? But if you deny that state help for economic security needs to be part of the American vision of the Emerald City, if you think that government should be so small it can drown in a bathtub, that health care should not be a right, or that “personal responsibility” should extend even to food and shelter without any governmental support, then you are far from the mainstream and will be counted as an enemy.

The debate over this third right has been sharp. The Right defends the last 40 years of material gains for only the upper classes, giving short shrift to un-American inequalities of opportunity and shrinking social mobility. They are edging up to a very different view of the Emerald City.

To be fair, the Left also tries the patience of traditional American thought with claims of “nobody should be a billionaire,” which is close to “nobody should be rich.” Personally, I would propose a modern Freedom from Want agenda for an Emerald City credo as The Policy of Nobody:

Nobody should be a second class citizen.

Nobody should be without health care.

Nobody should lack education because of money.

Nobody should be food insecure.

Nobody should lack shelter.

Nobody should lack possibilities.


Freedom #4: Freedom from Fear

Roosevelt's fourth freedom was directly aimed at the fascist thugocracies threatening neighbors and the world. Roosevelt cast this threat in terms of a state of mind of safety, security, and non-intimidation, reminiscent of the Declaration of Independence's call for freedom in “the pursuit of happiness.” Our current thugocracy threat where might rules right, of course comes from within rather than from abroad.

States trade their monopoly on violence for a pledge to administer justice fairly. The cell phone camera revolution has illuminated for the country at large what has been known for decades, that police enforcement does not meet the standard of legitimate fairness. Now that the problem is impossible to ignore, opponents will contend on how and at what rate to fix it. Enemies will defend the current standards and prevent police reform.

Given the recent assault on the capital and the specter of armed rebellion by an intense minority in other venues, not a few of them members of exactly those elements of society that exercise the state monopoly of violence, the threat is less abstract that before January 6. The vision of justice fairly administered and backed by judicious use of violence is in question.

The founders tried to balance the need for state monopoly on violence with the need to resist tyranny. Their solution was to ensconce a right to armaments for a “well-regulated militia,” so that central force illegitimately used could be resisted. How this was changed to an interpretation of free guns of all types for all types has a clear history, but a mysterious motive force. What is perfectly clear, however, is that the dispersal of guns has now become inimical to feelings of safety and security in the general population. Solutions are difficult, but realization that solutions are necessary is less so. Opponents will agree on the problem and propose solutions with different means and timelines. Enemies will deny the problem and even seek further “freedom” to own, display, and use guns, as the general population cowers.


Freedom #5: Freedom from Discrimination

A case can be made that the biggest change between Roosevelt's time and ours is the status of discrimination and racism. The Civil Rights movement, and the associated liberation movements that followed, have unalterably changed the basic creed of the country. Non-discrimination is now accepted as morally right, and as instrumentally useful for the country in allowing more people to contribute, and in its morality, enhancing the legitimacy of our government. Were FDR to give his speech today, he would certainly add non-discrimination as a basic value.

Erasing the historical practices of discrimination needs to be part of the Emerald City vision. Which Yellow Brick Road to take, however, is difficult. What time schedule and what kind of enforcement, what if any reparations, how much affirmative action, what protections for non-minorities from counter-discrimination? All changes have their pace, and there is always a progression from innovator to early adopter, to early majority, to late majority, and then to laggards. We seem to be well into late majority adoption of the new ethos.

Realistically, this change is hard, as every change that involves giving up even an unfair advantage is hard. But what is jarring today is to watch television and see spokespeople with foreign names and foreign faces speaking perfect English and extolling the American creed with deep feeling, while traditional white faces and names proclaim themselves the “real Americans” and extol exclusionist, racist doctrines.

Opponents will debate the Yellow Brick Road to non-discrimination; enemies will call the former advantaged group now the oppressed, declare change unnecessary and sabotage and obstruct progress, and support white supremacist groups. We have to acknowledge that the forces of the enemy in this category of the American freedoms are substantial.


Freedom #6: Freedom of the Free and Fair Vote

Free and fair voting is both morally important and instrumentally useful in conferring legitimacy to the government, leading to a more stable society, and (some say) resulting in better decisions and directions for society. It is viewed as foundational for all other freedoms. “Voting is the simplest, most electrifying way that ordinary people can make their voices heard. Anything that unduly inhibits it saps a people’s democratic faith.” Since our free and fair voting system is the clearest possible contrast with fascism, it is remarkable that FDR did not include it as one of his basic freedoms. Given current events, he would not omit it today.

Not that voting has been anything like the naive presentation in civics classes of old. At first slaves, women and others could not vote; the Connecticut Compromise made less-populated states over-represented in the Senate; indirect democracy had senators elected by state legislatures and presidents by the Electoral College. Democracy developed further imperfections such as political machines, candidate choices made in “smoke filled rooms,” Jim Crow voter suppression, gerrymandering, dirty tricks and blatant fraud, electoral financing that enabled corporations and the rich to have more “free speech” than common people, and the abuse of the filibuster. Senators representing 18% of the population can block legislation. Even in good times political scientists concede that there has been “long-standing participatory advantage of the well-educated and the well-off.”

Inclusive voting has its theoretical critics as well. The National Review has consistently argued that “Too many people are voting,and that voting laws should make voting harder to produce a smaller, "better" electorate.

But despite voting's spotty history and some divergent theories, the arc of voting history has bent strongly toward inclusion, even with setbacks. Especially after the Voting Rights Act of 1965, we now have arguably a freer, fairer, and more inclusive system of voting than ever before, and probably the most error-free and fraud-free system in history. That free, fair, and inclusive elections are part of the Emerald City ideal is evidenced by the fact that opponents feel forced to defend their actions with euphemistic claims of protecting “voting integrity.”

Given this history, the onslaught against free and fair voting in the past ten years is truly remarkable. From violations of norms and often laws, to Russian intervention, to the Big Lie, to unprecedented fouling of the post-voting and tabulation electoral mechanisms saved only by heroic unsung measures, to a spectacular assault on the Capitol, to absurd assaults on the integrity of the 2020 vote, to state by state legal assaults on future voting with the current Republican plan to win the presidency without getting a majority of either popular or electoral votes, to Republican justices of the Supreme Court eviscerating the Voting Rights Act and supporting state anti-free voting and anti-fair counting measures – “if you can keep it” speaks to us right now.

No one expects that elections will be pristine. Elections have always attracted chicanery. But we can ask for sincere adherence to an ideal of free and fair elections within the traditional norms, without significant overt voter suppression, not too many dirty tricks, not too much manipulation, lying, and demagoguery. If there is disagreement on the Yellow Brick Road, we can ask for it to be sincere. But right now, despite popular opinion's widespread support of fair elections, we are seeing more enemies facing off than opponents disagreeing. In fact, the rush to suppress free and fair voting is so severe, we may be on the verge of discovering the contemporary definition of treason. Nothing says “enemy” so strongly as treason.


The Scorecard

For those of you keeping score at home, the six-fold test finds Trumpian Republicans pretty far outside the bounds of the Six Freedoms:

  • Free speech: Trumpist Republicans abuse free speech to foster the Big Lie as a conscious matter of policy.

  • Freedom of religion: Trumpist Republicans repeatedly press positions that place religious beliefs over civic laws, and Republican-appointed Supreme Court justices increasingly support these positions, with possible reversal of Roe vs. Wade pending.

  • Freedom from want: Trumpist Republicans support the new enhanced levels of economic inequality, as particularly evidenced with tax cuts, and continually seek to pare back safety net programs.

  • Freedom from fear: Trumpist Republicans obstruct reform of discriminatory policing, support freedom to carry weapons of war, and defend and encourage armed militias who march with torches, assault the Capitol with gallows erected, and chant “they will not replace us.”

  • Freedom from discrimination: Trumpist Republicans have become strongly anti-civil rights, catering to perceived grievances of whites, often supporting white supremacy.

  • Freedom of free and fair elections: Trumpist Republicans have supported Russian interference with elections, support rejection of honest election results, and support voter suppression legislation across the country with plans even to disrupt electoral mechanics.

A fair reading of these positions reveals such serious dissent with traditionally held values that it is impossible to present them as positions of opponents rather than positions of enemies.


Conclusion

The point of this essay is to find a cogent perspective to make sense of our current perilous situation. Are we facing opponents or enemies in our disunity? Can we look to accommodate and compromise, or must we look to defeat? We look to our history to find our constant and evolving values to make that assessment, using the formulation of Franklin Roosevelt in identifying our constant and evolving values.

Looking at Roosevelt's Four Freedoms, and then adding two that were inherent in his formulation and newly illuminated by our last 80 years, it's pretty clear that the Trump Republican party stands well beyond the role of opponent, firmly in enemy territory. There are certainly adjustments to be made as indicated when we looked at the individual points, but they cannot involve giving way on the essential points. It is pretty clear that strength in opposition is needed, with a goal of victory, not negotiation.

For unity to be reasserted, the Trumpians don't need to disappear – unity is never unanimity, we could well coexist with perhaps 15% of an electorate seditionist in thought. Despite current appearances, we might actually be closer to that goal than it seems. Schlesinger's concept of the “vital center” and “liberal democracy” has always held in the United States pretty well, and it's hard to think that we are in a revolutionary situation now – revolution should not happen in a country with so much liberal democracy history, so much prosperity, so many centers of power, so much decentralization, such a righteous military, so many lawyers, so many influential elites, so much resistance, so much good sense.

Grievances and resentments are the lot of mankind. The question for civil society always is how to tame those emotions in a way that satisfies needs with respect for individuals and groups in a way perceived as “fair enough.” Our system has generally managed to be fair enough at the end to muddle through. Unity does not appear overnight; it appears cumulatively as success follows success. I doubt that we will need a crisis like WW II to be unified. Following a Yellow Brick Road does eventually lead to the Emerald City, no matter how many Flying Monkeys we need to fight off. In America we talk, we do not insurrect.

But it still remains true, in the historic off-hand remark of Philadelphia's patron saint Ben Franklin, “A republic, if you can keep it.”

 

Budd Shenkin


Thanks very much for the help and encouragement of David Levine and Leif Haase.

There are two earlier versions of this essay, a long one at: http://buddshenkin.blogspot.com/2021/03/finding-unity-four-freedoms-plus-two.html

and a shorter one at:

http://buddshenkin.blogspot.com/2021/05/a-path-to-unity-six-freedoms-of-2021.html

The reader is also referred to an article and a summary on necessary post-Trump reforms, detailing six potential tools, and eight areas for reform:

http://buddshenkin.blogspot.com/2020/05/planning-for-post-trump-reforms.html

http://buddshenkin.blogspot.com/2020/05/post-trump-reforms-executive-summary.html

Wednesday, July 7, 2021

High Speed Trains Belong In Urban Regions

 

The estimable Steve Rattner opined in the New York Times that Amtrak is making a strategic mistake in aiming to serve small and remote locations and more long haul lines, when short hop airline connections and cars would make more sense. He said that Amtrak connections make sense only in the congested Boston-Washington Northeast Corridor (NEC, not to be confused with neonatal necrotizing enterocolitis). “America is not Europe, with its dense population centers clustered reasonably close together. Nor is it China, essentially starting afresh and without the regulatory, labor and bureaucratic issues that plague government projects here.”

To Rattner, the economic losses that Amtrak incur indicates inefficiency. He points to the folly of governmental planning. The San Francisco to Los Angeles high speed rail line is a farce, he says, and I agree. Rattner's solution is, privatize! “We can use the private sector when appropriate and apply rigorous analysis — not politics or nostalgia — to allocating public funds. We’d be much further along as a nation, if we had done that already.”

He got some letters in response. Train-o-philiacs told of the virtues of the long train trip, which is appealing to the senses, but avoid economic analysis. They are actually touching letters, to me. I also remember Joe Biden's recounting how his train commuting to his home in Delaware gifted him a second family, the regular travelers and train employees on the train. It touches the heart.

As readers know, I myself am not without my opinions, so I weighed in with a letter that the NYT saw fit to publish. I agree with Rattner in his support of Amtrak in the NEC, and with his disdain of both the California misconceived SF to LA high speed line. But I disagree with his conclusion of leave it to private industry. Private solutions to public problems often miss the mark, making money is often not the best criterion, and private solutions have difficulty being long-term and serving the needs of all the people – plus, climate externalities are often neglected. Thoughtful public planning should be possible in the United States, I think and hope, not just in Europe and China!

I've opined previously that we should be thinking about regional transportation in more expansive and imaginative terms. http://buddshenkin.blogspot.com/2018/05/city-congestion-housing-transportation.html. And http://buddshenkin.blogspot.com/2018/05/transportation-policy-is-housing-policy.html.

Luckily, since I had thought about the issue before, I was able to summarize my argument in fewer than 100 words, which no doubt contributed to its having been selected for publication. Here's the letter:

To the Editor:

Steven Rattner is right to impugn the vision of trains hitting small and remote destinations. But both he and Amtrak neglect the contribution that high-speed trains could make to regions around cities. High-speed trains in combination with other transport modalities could allow newly accessible peripheral centers to flourish and render housing problems more easily solvable. Time spent, rather than distance traveled, is the crucial variable in urban development. High-speed trains have a place; they have just been aimed at the wrong targets.

Budd N. Shenkin
Berkeley, Calif.

It would take a lot of thinking through, but I'm sticking with the idea. Everything can't be telecommuting! We will still need to move our bodies for the foreseeable future.

We can use some good high-speed train solutions!

 

Budd Shenkin

Thursday, June 3, 2021

Coping with COVID - Could Hospital Administration Do Better?

 

Being A Medical Insider – Sometimes It Works, Sometimes It Doesn't


My Dad, a fine and noted neurosurgeon, was very much a doctor. He was chief of neurosurgery at Episcopal Hospital in a working class area of north Philadelphia. He was in private practice, and part of the deal was that he would go to many outlying hospitals in need of neurosurgical consultation. Stop doing that and your practice dries up, in contrast to the university medical center where all you had to do was to show up. It was a pain, I guess, but he got to see a lot of medicine as it was practiced in real life, in real places, with real people, by typical practicing docs.

His conclusion was contained in this advice: Every family needs a doctor in every generation, to protect the rest of the family from the crap that goes on out there.

That's good advice. Another way of saying it is what my med school classmates passed onto me: You know what they call the person who graduates last in the class? Doctor.

But, besides self-protection against the last-in-the-class dangers, if you are a doc, when you are dealing with medical issues, you are viewed as an insider. If you start getting pushed around by medical staff in any situation, you get to push back with force. And very importantly, as an insider, other docs will treat you with great care and respect because you are a member of the tribe. Of course everyone should be treated that way, and truth to tell, they often are. I can't tell you how proud I am to be a member of a profession that works so hard to treat everyone with respect. For the most part. Not always and not everywhere, but in my personal experience, for what it's worth, more often than not. I sure tried to inculcate that in my practice, I can tell you. Sometimes, giving respect and caring is the most important part of the job. Maybe mostly. But not to get carried away, truthfully, when I'm under the knife, give me the competence, not the emotion, I'll get that later.

Last Thursday was my time to take advantage of being an insider, but in a surprising fashion. At 3 AM my wife, who has a disability, fell in the bathroom, hit her head on the tile floor, was knocked unconscious, stopped breathing, had her face turn gray and her lips turn blue, and then she had a seizure. Then she started breathing but didn't wake up. It was very frightening. I called 911 and the very professional EMT's came to the rescue. They took her to their ambulance and transported her to Highland General Hospital, our county hospital and our nearest trauma center.

I called my step-daughter Sara, who is the doctor in our family of the next generation, like me a pediatrician, and a professor of Pediatrics at UC San Francisco Medical Center, where she is among various titles, chief of the eating disorders program. Sara lives just a mile away, so she got dressed, I picked her up, and we drove down to Highland. I worried about our getting into the ER to be with my wife, but our county is about to be a COVID-19 yellow-risk county, and I've had another incident during the pandemic when I was able to be with Ann as her caregiver. I hoped that both Sara and I, both being docs and both being vaccinated, would be able to be with her in the ER, as would be necessary for her and as would be appropriate for medical-decision making. Happily, we were able to be there with her. Happily, she received excellent care, the staff and docs were excellent, and of course Sara and I were treated as insiders, as colleagues. Happily, the CT scan was normal. Unhappily, having been there for several hours and waking up, she then had a second seizure, which was very unnerving for us.

Now it was the morning and we knew she would have to be there for a few more hours at least, and possibly be admitted, we were urged to go home as she slept, eat some breakfast and take a shower and then come back and figure out what to do next. We accepted their advice, but Sara said to them, we'll be able to both come back in to be with her, right? No problem, we were assured.

When we came back, however, the morning charge nurse had assumed her duties, and we were told at the entrance to the ER that we would not be allowed back in because of COVID restrictions. The tall red-bearded man who staffed the entrance indicated that he was not happy with this decision, and the shorter uniformed guard to the side said that there had already been pushback from Administration over our having been allowed to visit in the first place.

We reacted as anyone who knew us could predict. I was very angry and told them we were now taking her out, even Against Medical Advice (AMA), and driving her home or to another hospital. Sara cried. She observed how they were violating norms that require informed medical decision making for every patient. The red-bearded man gave me a card with the relevant phone numbers to protest. I yelled some more. I was about to get our car out of the parking lot so we could take Ann right now. Sara dissuaded me. I called the ER nursing cellphone number – they had given it to me on Sara's urging before we left – and told the nurse that we were exercising our right to take the patient out. She said that the doctors were about to deal with her case on their rounds so we should wait. We heard nothing more and they no longer answered the ER nurse cell phone. So I texted to them to please not make me take steps to free my wife that would be unpleasant. So, where we had a few hours before blessed our luck in receiving excellent care, we were now full into a shit show, triggered by administration.

Which is where a surprising feature of being an insider came into play. In her UCSF roles, Sara has trained and worked with many members of the profession. It happened that one of her former students worked at Highland. Sara called the number, and as luck would have it, this former student was on duty just one floor above the ER. She would visit the ER and try to set things straight. About 20 minutes later this former student came out of the ER entrance and greeted Sara and met me, and they would now allow one of us to go into the ER to be with Ann. Sara insisted that I be the one to go in.

Shortly after I was in the room, the morning ER doc came around. He had been alerted to our situation by Sara's former student, because, mirabile dictu, he was a UCSF colleague whom Sara had worked with previously. That is, he was a medical friend. That is, we were all insiders. So I got Sara on the speaker phone and we all talked the situation over. We decided that taking Ann home was medically permissible, even preferable, and that's what we did, by ambulance, with three strapping young men who were friendly and professional, the way I'm sure they generally were, but especially now, with a fellow medical professional.  We got home and in time the event receded in memory

But what a shit-show was heavy-handed hospital administration! There is no time for nuance in a pandemic, common-denominator thinking turns out to be extremely low on quality of thought, trusting no one to think. You just have to sneak thought in sideways, away from the eyes of the officious enforcers. Eventually, you just say – Give me a fucking break, asshole! And those who can think, the red-bearded man at the entrance, your fellow professionals, help you find your way into the cracks. When it is possible. Which it often isn't.  We were lucky, even as insiders.

To look at the issue from 30,000 feet, there is often a rift between those who do and those who administrate. Sometimes, it's tragic. See my recent post – http://buddshenkin.blogspot.com/2021/05/the-case-for-professional-quality.html.

And see just today, how the heavy hand and light thought of administration of hospitals continues to be an affliction.

https://www.nytimes.com/2021/06/03/opinion/covid-hospital-visitor-policy.html

O tempora! O mores!

 

Budd Shenkin

Theaters of Pardoning

 As published in Criminal Law and Criminal Justice Book Reviews, from Rutgers University School of Law:  https://clcjbooks.rutgers.edu/books/theaters-of-pardoning/


Theaters Of Pardoning

Author: Bernadette Meyler
Publisher: Ithaca, NY: Cornell University Press, 2019. 324p.
Reviewers: Budd N. Shenkin and David L. Levine | May 2021

Bernadette Meyler has written an academic book on the power of the pardon in seventeenth century England which, because of Donald Trump, has become of more than academic interest in twenty-first century America. The book displays deep scholarship as it explores the pardon informatively in Meyler’s specialties of law, political theory, and English literature. Her thesis is that in seventeenth century London, theatrical productions not only reflected but also contributed to political discourse of the day. (Spoiler alert, CNN had not yet been invented.) For example, Meyler contends that the pardon’s appearing in 47 different plays from 1600 to 1661 illustrates how salient the power was at the time. She examines several of the period’s plays in detail, reflects on how they related to then-current political events, as well as legal and political thought of the day, including the writings of the great jurist, Sir Edward Coke, and a full chapter on the philosopher, Thomas Hobbes. In this review, we concentrate on the public policy implications of Meyler’s investigation. We first describe the basic dilemmas of the pardon as we see them, then recount some of Meyler’s findings and analysis, and finally comment briefly on conclusions for our current American context.

I.

The pardon would seem to be a relic from when government was by rule of men (and a few women) rather than by rule of law. It has been retained over the centuries, however, for two worthy purposes: (1) to extend mercy for the sake of the recipient and family, perhaps to rectify either a faulty conviction or a too-severe sentence, and (2) to extend mercy for state purposes, as a means to quell dissent and bring dissidents back into the fold. Meyler also reveals more a subtle aspect: extending a pardon demonstrates and strengthens the perception of sovereignty – the one who extends mercy is clearly in charge. She observes that just as on the theatrical stage, in real life, the pardon is often granted in dramatic fashion; it can be a flagrant display of power and sovereignty, the real life equivalent of deus ex machina. Meyler notes that strengthening legitimate exercise of power, always a bedrock requirement of government, was of particular concern in the shadow of the Stuart kings, the English Civil War, and the Restoration.

Even when used legitimately, however, the power to pardon contains hazards. Government needs to be seen as fair. Respect for law is vital to a healthy state, but by its very nature, the pardon represents an exception to the legal process. This fact led sixteenth-century French political theorist Jean Bodin to oppose pardons completely. In addition, the pardon invites resentment in those with similar offenses who go unpardoned, and if the pardoned offender tangibly injured someone, the victim (and family) can harbor resentment.  Meyler also observes that the pardon power can upset the balance of power in government — lodge it with the Parliament and the king suffers, and vice-versa.

Moreover, the pardon can be abused and be used for illegitimate purposes, with even more nefarious results. President Trump has made us all too aware of how using the pardon for the personal and political benefit of the pardoner can appear corrupt. An unscrupulous pardoner can also attack a law directly by pardoning someone who has broken a law with which the pardoner simply disagrees. This can constitute an unwarranted veto of a law, a means to assert an illegitimate power right in a battle between branches of government. In other words, in the wrong hands, the power to pardon can be weaponized.

II.

Meyler reviews how seventeenth-century writers were concerned with how, when, by whom, and with what motives the pardon should best be utilized. Her major attention is focused on three plays from the reign of King James I of England (1603-1625) – William Shakespeare’s Measure for Measure (1604), John Ford’s The Laws of Candy (1619-23), and Philip Massinger’s The Bondsman (first performed in 1624, but played for decades). She then touches on Cosmo Manuche’s The Just General (1652) and his The Banish’d Shepherdess (1659-60). Finally, departing drama and opting for political theory, Meyler considers deeply the works of Thomas Hobbes during the Restoration, especially concerning The Act of Oblivion (1660), which ordered that all events concerning the Civil War from 1637 to 1660 officially be forgotten.

The plot of Measure for Measure is well known to modern readers. The ruling Duke of Vienna entrusts his ruling position to a subordinate, Angelo, and secretly goes underground in disguise. His replacement uses the letter of a heretofore unenforced law against a young man in order to extort sexual favors from his sister, who is a nun.  Angelo’s misrule for personal gain is revealed by the Duke-monk who reassumes his control, and turns tragedy to comedy (tragicomedy was the genre for most pardon plays) by pardoning everyone and compelling all the play’s lovers to marry. Perhaps we are to conclude that an evil ruler can use the law to do evil, but a good ruler can keep the state together harmoniously by using the pardon power wisely. We are tempted to think that just as the Duke’s pardons transmute a tragedy into a comedy, that should be possible in real life as well. It probably also refers back implicitly to the Oresteia, where law and the pardon were seen as the alternative to endless cycles of revenge and retribution. Does Measure for Measure refer to the then-current difficulties of the state in establishing legitimacy and the difficulties of the king in withstanding the incursions on his sovereignty by Parliament? Does it even foresee the possibilities of revolution in the Great Rebellion? Meyler thinks so. She also thinks Shakespeare’s lesson was lost upon James, who was known to have seen the play in London in 1604. James encountered the Gunpowder Plot less than a year later, but rather than using the royal pardon to quell dissent (a la the wise Duke of Vienna), he tossed the political problem to Parliament. By doing so, he inadvertently diminished his sovereignty in favor of Parliament’s power, which decided to draw and quarter the perpetrators.

Meyler contends that James didn’t absorb Shakespeare’s message, but who is to judge when to use the velvet glove and when to employ the mace? There is a difference between an opponent and an enemy; there is a difference between mainstream and fringe; there is a difference between belief and action. There is a time to reconcile and a time to extirpate. There is a time to act personally, and a time to defer to others. Who knows definitively which is which?

Over a decade later, more conscious of the fragility of the state than Measure for Measure, Meyler says that “The Laws of Candy and The Bondsman … vividly present the possibility of disaster and crystallize how variants on pardoning could contribute to reformulating the state.” (p. 169.) The Laws of Candy takes place on the island of Crete, the same locale as the play’s inspiration, Plato’s The Laws. A basic law in this fantasy is that ingratitude is punishable by death, but as would seem inevitable, a string of ingratitudes threatens the death of so many Candy principals that the state itself would fall. Pardons are the only answer, but the leadership is compromised, so instead of coming from a domestic ruler, an outsider from Venice influences the locals to democratically and personally pardon one another. The pardons allow lovers to find each other and tragedy again transmutes into tragicomedy. Candy presents, then, an alternative imagined way of effecting pardons.

The Bondsman, inspired by the Stoic tradition of Seneca from ancient Rome, tells the story of a slave insurrection occasioned by a cruel and poorly self-regulated ruling class in ancient Syracuse on the island of Sicily, which threatens to bring down the state. With a plethora of blame to go around, some Bondsman characters would seek to put the revolt down with vengeance, others to pardon widely out of pity. It again is left to an outsider, the leader of the army summoned to defend Syracuse when the dissolute leadership was incapable and unwilling to do so, to mete out punishment and pardons so that the state does not dissolve. He proves to be the incarnate Stoic philosopher who possesses clemency, the cool reasoning state of mind that stands between the emotional extremes of cruelty and pity, who can punish and pardon wisely, sometimes committing acts he personally deplores, but all to the higher purpose of preserving the integrity or the state. Sometimes priorities are at odds with one another, and one must take steps for the state that one personally regrets. The solution focuses less on the arrangement of a polity and more on the necessary qualities of leadership, as in The Laws of Candy, coming from outside the state. As a tragicomedy, in the end, there are marriages and happiness by virtue of strategic pardons.

As the English Civil War progressed and the monarchy was threatened, James’ grandson, King Charles II, proposed the Act of Oblivion, which Parliament passed in 1660. This is perhaps the ultimate pardon, but at the same time unlike it. The pardon is to an individual, not to a class of persons, more like an individual judgment than generally-applicable legislation. A pardon forgives, but it doesn’t forget. In contrast, the Act of Oblivion was the ultimate act of bestowing reintegration on the unsuccessful rebels, not mere forgiveness of a few individuals. Like Seneca, Hobbes saw the state’s preservation as the achievement of a state of peace, and even if the Act of Oblivion solidified the increasing power of the Parliament vis-a-vis the king, he was for it.

III.

After Meyler’s detailed analysis, what we are left with are eternal dilemmas with the pardon power. If it is the choice of a single sovereign (as our eighteenth-century Founders designated for us in the U.S. Constitution), we are wholly dependent on the good character and perspicacity of that sovereign. Wise sovereigns, such as those who emerge in the plays Meyler addresses, can do good for people and country, and enhance personal legitimacy, by pardoning wisely. The plays, however, tend not to consider when the “opposition” is truly “the enemy,” and must be crushed. The Act of Oblivion seemed to work well after the English Civil War; Truth and Reconciliation worked well in South Africa; but the Nuremberg trials worked well, too. The situation tells the tale.

Meyler is very effective in situations real and imagined, and in citing theory that offers options in where the power to pardon might be lodged – it need not be a King, a President, or a Governor. She speculates at the end that in the U.S. today, perhaps the pardon should be “democratized.” As it happens, her idea is very reminiscent of what we have called for, given the history of pardon misuse since Watergate. We have proposed that a constitutional amendment requiring pardons must be ratified with the co-signature of the Speaker of the House to become effective. Perhaps this is the germ of the idea that Meyler has in mind.

Meyler has written a complex book, extensive in scope and with many strands. It is not for the faint-hearted or casual reader. But her deep scholarship and inventive imagination have done a significant service for those who must now reckon with a vexing issue in the post-Trump era: Should the power of the pardon, what Alexander Hamilton called “the benign prerogative,” continue to rest solely in the hands of just one person, our President? Meyler’s Theaters of Pardoning gives us some important considerations to weigh as we address possible reform options.

References:

Budd N. Shenkin & David I. Levine, Should the Power of Presidential Pardons be Revised?, 47 Hastings Constitutional Law Quarterly 3 (2019)

The Federalist No. 74 (Alexander Hamilton) (Terence Ball ed., 2003)

Budd N. Shenkin, M.D., M.A.P.A. is a Member of the Board of Advisors of the Goldman School of Public Policy at the University of California, Berkeley.

David I. Levine, J.D., is Raymond L. Sullivan Professor of Law, University of California, Hastings College of the Law, San Francisco. Contact: 510-517-4013

Friday, May 28, 2021

The Case for Professional Quality Boards as a Solution for Organizational Dysfunction

 

The Case For A Professional Quality Board In Professional Organizations


Executive Summary


Large organizations, both private and public, are necessary to achieve large scientific and technical goals, but as these large organizations come to house both scientific/professional personnel and administrative/business personnel, internal dissonance will inevitably arise. Keeping these goals in balance is required for success. If business/administrative goals and mores that come to predominate, product failures can result. The failure can be chronic, as when profit or organizational advancement comes to trump product quality, or acute, as when imminent disaster is overlooked and crucial knowledge ignored.


To avert this sort of organizational decline, this paper suggests the establishment of Professional Quality Boards. This Board would be composed of highly respected senior scientific and technical professionals, who would safeguard the scientific quality of the enterprise. The PQB's would be quasi-independent entities with wide investigatory powers. They would communicate primarily to the CEO and Chairman of the Board or governmental unit Director, but would also be empowered to address the legislature and higher executive officials in the case of a public entity, or stockholders and regulatory authorities for non-governmental entities, and even to make public their point of view. The mission of these PQB's would be to be the professional scientific conscience, the professional scientific safety valve, and professional scientific corrective conduit for the organization. This idea is explored in the context of NASA, Boeing, the CDC, and medical organizations, and is contrasted to other proposed solutions.


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The Problem


Modern life and modern technology often demand very large organizations. Big objectives -- go to the moon, build a modern jet plane, prepare for and fight a pandemic – require thousands of scientists and engineers, as well as thousands of administrative personnel and managers. Organizing all these specialists into a coherent whole has become, just like the technologies they seek to harness, a modern innovation in its own right. The successes have often been amazing.


But along with successes have come failures, some necessary, but some avoidable. There was NASA's Saturn V rocket, but there was also the Challenger. There was the Boeing 747, but also the 737 Max. There was CDC's Smallpox eradication, but there are also the great COVID-19 fumbles in testing, ventilators, truthfulness, and leadership. And there are the ongoing violations of rationality and humanity in our medical care enterprises.


The successes and the failures have a common heritage – the merging together of technology and administration, and the aging of organizations. New technical organizations tend to be vibrant, staffed with innovation believers, intent on achievement, sometimes messy, places where righteous failures are expected and tolerated as learning events advancing the mission. These new organizations are Achievement Organizations. But as victories are won and the organizations mature, they inevitably tend to lose their initial fire, less adventurous personnel are attracted to join them, and eventually errors become sins and achievement becomes less important than avoiding blame. These are Blame-Avoiding Organizations. As Eric Hoffer says, "Every great cause begins as a movement, becomes a business, and eventually degenerates into a racket." And as Elon Musk observes about organizational degradation, “So, I think it’s kind of sad that we were able to go to the moon in ‘69 and here we are 2020 can’t even go back to the moon.


As with human bodies, each organization ages with common patterns, but each in its unique way. In some the scientific innovators are replaced by those with less vision and more focus on process than end result. Administrators may come to predominate over the technical side, profit may come to dominate thinking in a private organization, or growth of domain and continued funding might dominate in a governmental organization. Business and bureaucratic creep can lead the original visionary organizations astray.


The illnesses of aging organizations can be both chronic and acute. Chronic misdirection of the organization can occur, as when the objective of profit trumps that of product quality, or when the obsession of management bogs down the professionals with incessant needless paperwork. Acute misdirection also occurs, as when something dangerous is about to happen and the technical personnel know it but the administrators don't, and the message doesn't flow through the organization properly. Instead of a tight connection of administration with scientific point of view, it is common to see conflict of creative people vs. the suits, the administrators vs. the doctors, the managers vs. the scientists. The imbalance of points of view can make the organizations less functional, more prone to these chronic and acute dysfunctions.


But that is not to say that the productive life of organizations cannot be preserved and successfully resuscitated. When dysfunction is manifest and a company's viability threatened, as happened at Ford, a great leader can be called in to ream out the arteries and resuscitate the company. That's a late remedy. Others have tried to institute continuous renewal – General Electric CEO Jack Welch's brutal solution was to aim at firing the bottom 10% performing managers each year. It's not clear that it worked.


The reform I am suggesting in this paper is a structural change that would both help to keep companies and agencies on the right track in balancing the scientific and administrative strands, and to intervene directly to remedy acute problems.



A Proposed Solution - The Professional Quality Board


In brief, I am suggesting the creation of a Professional Quality Board (PQB), which would be composed of senior scientists, engineers, physicians and others, maybe even administrators, all widely respected, and with personal histories that bind them closely to the success of the institutional mission of the organization. Administratively, the PQB would lie outside the usual hierarchic organizational chart, off to the side at the top, attached to the CEO and the Board or to the head of the governmental unit, with long terms for members. The PQB would be quasi-autonomous. The mission of the PQB would be to be the professional scientific conscience, the professional scientific safety valve, and professional scientific corrective conduit for the organization.


Standing outside the regular organizational chart and privy to extensive information with the ability to investigate, the PQB would examine the agency or company for evidence of chronic misdirection, a severe deviation from the scientific objectives of the organization – identifying when the organization was in the process of becoming too much of a business and not enough of a calling, or worse yet, a racket. The PQB would also act as a safety valve for acute misdirection, when something was all set to go horribly wrong, and when internal efforts to alert supervisors and leaders of the need to right the ship have proved unavailing. In that way, the PQB would be responding to a whistleblower, in effect, but on scientific and technical matters, not legal ones.

I will say more about the PQB below. But first, it will be helpful to look at the organizational disasters I have picked out, and see how a PQB might have helped avert them.



Disasters in American Technical Agencies and Companies



The Challenger Disaster


The Challenger disaster of 33 years ago displayed a stark contrast between what the professional engineers at NASA contractor Morton Thiokol knew was about to happen, and the decisions made by the project managers.


On January 27, 1986, Bob Ebeling, a rocket engineer, drove home from the office with a dreadful feeling. He told his wife that they should prepare to watch a terrible tragedy unfold.


The night before the launch, Ebeling and four other engineers at NASA contractor Morton Thiokol had tried to stop the launch. Their managers and NASA overruled them. ...The data showed that the rubber seals on the shuttle's booster rockets wouldn't seal properly in cold temperatures and this would be the coldest launch ever.”


Why did the NASA hierarchy reject the engineers’ plea of caution about the rubber seals, known as the O-rings? Space Safety Magazine's account is telling:


The disaster could have been avoided. The issues with the O-Rings were well known by the engineering team working on the SRB, but attempts to notify the management had been constantly held back. The phenomenon of abnormal O-Ring erosion had been observed in previous flights. Instead of requesting an investigation, NASA Management ignored the problem and chose instead to increase the tolerance.


The night before the launch, NASA had a conference call with Morton Thiokol, manufacturer of the SRB. A group of Morton Thiokol engineers, and in particular Roger Boisjoly, expressed their deep concern about a possible O-ring failure in cold weather and recommended postponing the launch.

NASA staff opposed the delay. “My God, Thiokol, When do you want me to launch — next April?” said Lawrence Mulloy, one of the shuttle program manager attending the teleconference.

With the pressure from NASA, Thiokol management gave their approval to the launch, and Challenger was on its way to disaster. This failure in communication, combined with a management structure that allowed NASA to bypass safety requirements, was the organizational cause of the Challenger disaster.

(See also an in-depth exploration in the Teaching Company course on decision making given by Michael Roberto.)



The Boeing 737 Max Disaster


Boeing had long been an expert and profitable engineering organization. Even in my field of medicine, when we doctors protested how cumbersome our electronic health records were, we cited Boeing as the company to emulate, since they spent thousands of hours sitting with pilots to design their software to fit what pilots naturally do (see Wachter.)


Yet that very issue was at the heart of the two scandalous Boeing 737 Max crashes, where the controls to handle a flawed takeoff pitch problem were intricate and non-intuitive; where the pilots were poorly trained for handling the pitch problem; where the software depended on a single sensor with no back up; and where the procedures for handling problems when the nose pitched downward were buried deep in the instruction book. Was this really the fabled Boeing?


The complicated explanation has become apparent. Internal problems at the company, pushed to perform quickly to counteract the challenge of a new efficient Airbus model, led to shortcuts, and actual lies. Boeing described the new model as simply a revision of its traditional 737, but this was untrue, since the engines had to be placed higher on the wings and the software was changed, which led to many consequences and a substantially different plane. But as a declared model revision, monitoring was shifted from the FAA to Boeing itself, long hours of expensive and time-consuming training could be skipped. The intended result was a must faster time line to completion to better compete with Airbus.


The business people within Boeing may have been satisfied with the results, but the engineers and test pilots weren't. The most experienced aviators, leery of the revisions, were excluded from the final decisions that minimized attention paid to the potential problems, and the engineers and pilots were not even informed of the final decisions on these design and training elements.


Emails and interviews discovered by the New York Times revealed their disquietude:


Would you put your family on a Max simulator trained aircraft? I wouldn’t,” one said to a colleague in 2018, before the first crash. “This airplane is designed by clowns, who are in turn supervised by monkeys.” “I still haven’t been forgiven by God for the covering up I did last year,” one of the employees said in messages from 2018, apparently in reference to interactions with the Federal Aviation Administration. ...Stan Sorscher, a former Boeing engineer who then worked with a union representing company engineers, said priorities had shifted over the past two decades, with profits mattering more than quality.”


Despite challenges by line supervisors who blamed the pilots, Congress issued a report invoking these severe organizational problems. The report clearly cites the problem of Boeing's seeking profit over safety, and the connivance of the FAA, a captured agency in this case, whose own leaders neglected the recommendations of their own technical experts. “It illustrates how Boeing’s management prioritized the company’s profitability and stock price over everything else, including passenger safety. Perhaps even more alarmingly, the report shows how the F.A.A., which once had a sterling reputation for independence and integrity, acted as a virtual agent for the company it was supposed to be overseeing.”


While the 737 Max problems were clearly acute, chronic company problems were evident as well. “Jerry Useem, a veteran business writer, argued in The Atlantic, last year, that the 737 MAX calamity can be traced back to Boeing’s move from Seattle, and the decision to 'divorce itself from the firm’s own culture.'” Others have traced the transition from engineering-centric to business-centric culture to the 2001 Boeing takeover of McDonnell-Douglas, which paradoxically resulted in McDonnell-Douglas executives in charge and subsequently the move of headquarters to Chicago, 1,500 miles away from the company's engineers.


It is not hard to conclude that over the years Boeing had migrated from a corporation guided and populated by engineering to a company guided and populated by business-centricity, and the 737 Max disaster was a distal result of the prior cultural shift.


The CDC – Striking out on COVID-19


This mishandling of COVID-19 by CDC is already legendary, and we have only understood a small part of it. What ProPublica summarizes as “the botched COVID-19 tests, the unprecedented political interference in public health policy, and the capitulations of some of the world’s top public health leaders,” came as a shock to the world at large, which until then regarded the CDC as a world-premier organization. Although we will soon know much more about the CDC implosion, we can already discern the outlines of chronic decay that foretold the acute failures.


The now almost forgotten panic over ventilator shortages gives an indication of possible chronic loss of initiative at CDC. As detailed by the New York Times, when the Biomedical Advanced Research and Development Authority (BARDA) was established under President George W. Bush's personal enthusiasm for an anti-pandemic capability, they foresaw a need for ventilators and moved to fill it. They let a contract to develop cheaper ventilators, were making progress, but then private business bought the development company and slow-walked the project, which would have undercut their own prices. When private business asked that the project be abandoned, the CDC did not protest, and the foreseen need was not fulfilled. That is typical bureaucratic passive behavior, not the behavior of a vibrant, achievement-oriented, admired institution. We can only be grateful, that ventilators did not prove to be very effective for COVID treatment, and that the potential need did not become manifest.


Insiders at the CDC were aware of the shortfall. The New York Times story alludes to disappointed employees, and to CDC Chief (2008-2017) Tom Frieden, who said he was excited by the progress in 2013, just before the sale of the company, but then we hear nothing about his attitude toward the subsequent failure. There is more to be learned here; the CDC has proved very adept at organizational self-protection.


The first pandemic sin of CDC, of course, was failure to connect the dots early, as Michael Lewis documents, and as he also documents that non-CDC people were actually doing in the organizational wilderness. CDC then acceded to political influence from the Trump Administration to soft pedal the expectations, hoping that COVID-19 would go away as SARS and MERS had done – despite indications that the infectivity of symptomless patients would make a significant difference. The memory of apparent overreaction to Swine Flu in the 1970's, that had cost Director David Sencer his job, no doubt remained fresh.


Then came the test kits debacle. Test kits were vitally, urgently needed as an initial step to contain the virus's spread. But the CDC, despite huge nationwide resources to produce tests, decided to produce its own and to ban the use of any others, abetted by FDA, which would need to certify each test. CDC then failed to produce a workable test. “'We have the skills and resources as a community but we are collectively paralyzed by a bloated bureaucratic/administrative process,' Marc Couturier, medical director at academic laboratory ARUP in Utah, wrote to other microbiologists on Feb. 27 after weeks of mounting frustration.” It is possible that this simple episode of bureaucratic hubris cost tens of thousands of lives, or more.


It is well known how CDC was compromised in allowing wholesale politicization of their organization and their public communications, involving specific health directions and specific language and specific data concerning COVID-19. Books are already being written about the sharpest decline of reputation of a public agency in our lifetime. As explanation, making the Director of CDC a political appointment is cited. Lewis's observation is also acute: “The root of the CDC's behavior was simple: fear. They didn't want to take any action for which they might later be blamed.” And in fact, despite a change of leadership and administrations, as of the very finishing of writing this paper – just this week! – the CDC has once again committed a sin of ultra-caution by claiming that outdoor transmission of COVID is “less than 10%,” and recommending continued wearing of masks outdoors, when the true number is no doubt less than 1%, and maybe as low as 0.1%.


But let me stop here. The case is clear enough.



Medical Care Organizations


No sector has shown more vividly the parallel growth of science and administration than health care. Evolving from the past era of smaller organizations and professional dominance when doctors called the shots, the modern era of corporate rationalization is dominated by large medical organizations with a strong administrative component, including hospitals and insurance companies. Instead of one large event, in this section I will cite small but representative events that my friends in medicine and I have experienced personally.


A friend of mine who later became president of the American Academy of Pediatrics led a program at Cincinnati Children's Hospital that enhanced connections between community physicians and hospital physicians. They succeeded in increasing efficiency and reducing admissions. Seeing reduced occupancy, however, the hospital board declared themselves not in the business of producing unfilled beds and promptly axed the program. The board's narrow view of their mission, even though they are non-profit, differed from the objectives of hospital doctors and enlightened medicine in general, but that made no difference. There was no appeal possible.


When I headed Bayside Medical Group, we were members of a locally-based Independent Physicians Association (IPA) – an independent payer group sitting between insurance companies and medical practices. In an effort to bolster practice quality, the IPA decided to use their in-house billing statistics to measure each practice's use of inhaled corticosteroids for chronic asthma, with fines or bonuses to follow. Our practice had 55 cases judged out of compliance. I investigated each case individually and demonstrated unequivocably that in 52 of the 55 cases, their measurement did not reflect reality. The IPA administrative staff rejected our findings on the basis of gobbledegook. I appealed to the medical director, a physician in practice who also worked for the IPA, and he rejected our claim on the basis that the IPA program had good intentions. As an IPA employee, he had been captured.


Hospital forms require attesting that a three year old is a non-smoker. World class British neurosurgeon Henry Marsh recounts being illegitimately brought to heel in the National Health Service by the administrators, who utilized a physician-administrator whose major qualification was he ability to agree with administration, and to admonish fellow-physicians in behalf of administration. A young American doctor recounts how he could only be properly diagnosed and treated when he found a primary care practitioner who would buck the organizations strictures to achieve “productivity.” These everyday examples reflect a medical enterprise widely polluted by administrative predominance, which forces doctors to stifle themselves and soldier on with blinders to ensure their own survival. The experience of many doctors resembles that of engineers with O-ring problems, or with airplanes that they fear will crash.



The Proposed Solution – The Professional Quality Board



As I alluded to above, the mission of the PQB would be to be the professional scientific conscience, the professional scientific safety valve, and the professional scientific corrective conduit for the organization. Sitting as a permanent body with quasi-independence, they would routinely assess the direction and decisions of the unit (chronic function,) and would be constantly alert to internal tipoffs about specific situations (acute function.) The PQB would look for signs of chronic organizational disorder where professional standards are being compromised, and would be available for intervention in acutely dysfunctional situations, especially dangerous ones.


Communication with members of the organization would be confidential. Access to information would be guaranteed, although trade secrets would be protected. The primary communication between the PQB and the unit would be Chairman of the PQB to CEO and Chairman of the Board in non-governmental companies, and Chairman to leader of the unit in question in government. The PQB would have the option of communication with higher officials or the legislature in the case of government agencies, or regulatory agencies in the case of a company, or in both cases, should internal communications fail, with the media. The PQB would be the ultimate conscience of the organization.


The PQB would be composed of senior, respected former members of the unit or recognized experts in the field, all tightly bound to the declared mission of the agency or company. Being named to the PQB would be viewed as an honor and a responsibility. Their charge would be to put the institutional mission first, and they would take a solemn oath of professional idealism, similar to the still-revered Hippocratic Oath. Profit of a company or advantage to the governmental unit would explicitly not be their charge.


Funding would come from the companies or governmental units themselves. To cushion the threat of reduced funding which could be used as a weapon, a specific governmental unit would be assigned to arbitrate PQB funding disputes of both governmental and non-governmental units. After the initial establishment of the PQB, further membership additions and subtractions would be proposed by the PQB itself, with the agency or company having a veto that could be overridden by a preponderance of the PQB membership.


To some extent, the PQB could be viewed as an institutionalization of preemptive troubleshooting. The PQB would be a constant resource for leadership course correction. For specific problems they would be empowered to receive whistle blower complaints, and they could themselves pursue specific issues with their investigatory power, including the “L6 approach.” (Lewis, page 231) “L6” refers to the fact that in bureaucracies, the person who knows the most important details for specific problems is usually found in the bowels of the bureaucracy, perhaps at the 6th level down from leadership. The PQB thus would have some of the qualities of an Inspector General, but with a specific scientific bent, and more of a general mandate for policy and acute interventions.



Alternative Solutions


The difficulties of integrating professional expertise and values into large organizations is a well-known problem. Various solutions have been tried. One is to bring representatives of the expert community into the management chain as engineer-administrators or physician-administrators. These bi-skilled personnel can better understand both intricacies of the problem being attacked and the thinking process of their personnel. They might also bring the values of the profession into practice better than lay-administrators.


Bringing professionals of the home discipline onto the board is similar. In all these cases, it is assumed and reinforced that the professional's primary loyalty is owed to the company and that everyone needs to be rowing in the same direction. The goals of the company are to be paramount; the ideals of the profession are more of a constraint than a goal.


In some agencies and companies the task of scientific legitimacy is solved informally. The counsel of “elders,” most often retired and respected former officials, may be sought. Thus, when the Chairman of the Joint Chiefs and the current Secretary of Defense joined President Trump clearing peaceful demonstrators on a march from the White House through Lafayette Square to St. John's Church, they both were moved to apologize after they had received substantial pushback from retired generals and others. The FDA has a respected advisory committee. Five former FDA commissioners jointly suggested that President Biden name a new FDA commissioner promptly. Former CDC director Tom Frieden wrote an impassioned if fruitless letter to then-current CDC director Robert Redford to reject the importunities of the Trump Administration and stand up for science and the independence of the CDC.


The obvious scientific and procedural deficiencies and political influence on the CDC and FDA in the COVID response has provoked a flurry of suggested reforms to protect science, here in JAMA, here again in JAMA , and here in The New England Journal of Medicine. All look for ways to insulate science from politics, each considering making the CDC and possibly the FDA independent on the model of the Federal Reserve. The NEJM source suggests that: legislators could consider a broad reorganization of public health functions and create a superagency, whose purview would include everything from the approval of drugs and devices to the maintenance of national stockpiles of protective equipment. ...These agencies share important features, including protection of executives, multimember leadership, established qualifications and confirmation processes for executives, political balance, and budgetary stability.”


While all these approaches have made their contributions, I suggest that they are insufficient. Having personnel with mixed motives will generally make the primary motive predominant. Older, revered personnel might carry the scientific and medical ethics strongly, but the informality of the connection makes quick intervention very problematic, their information may be deficient, both of which attenuate the strength of any intervention or influence, and both of which make the intervention late, and only in major cases. Instead, the proposed PQC would use the prestige and weathered viewpoint of august personages, but would ensconce them in positions with some power, albeit not line authority. The existence of a PQC would give concerned people a place to go.


The most recent proposals responding to the CDC shortfall would involve a huge restructuring of health agencies, which would be attended by the usual bureaucratic deficiencies, and which would be very difficult to achieve, given congressional and executive investment in oversight and turf. Enlarging the circle of responsible agencies and inviting a diversity of interests to help stir the pot is more likely to lead to confusion than a sharper focus. Independence of already-troubled agencies is unlikely to promote reform. Instead, appending a PQB to each agency and company would be much easier to implement and would afford more specific expertise and accessibility for each problem as it arose, and would provide a beneficial filter between concerned outsiders and the agencies themselves.



Could PQB Interventions Have Averted the Problems in our Examples?


Challenger. The engineers who knew the O-rings could lead to disaster had nowhere to go with their worries when they were dismissed by the regular line of authority. If NASA had had a PQB, the engineers could go there on an emergency basis and present their evidence. The PQB would have an emergency protocol in place. If they found the evidence convincing or concerning, they would place a call to the NASA Administrator. If he were concerned enough, he would be able to supersede the decision of the project manager and disaster would be avoided. If not, other venues would be available.


In addition, if NASA were becoming overly bureaucratic and chronically making bad scientific decisions, a PQB would be a perfect vehicle to report this belief to Congress, the Inspector General, or the President.


737 Max. The engineers who were emailing each other, telling each other that they wouldn’t risk their family being on a 737 Max flight, could go to the Boeing PQB with their concerns. The PQB could then call a meeting with the CEO and make a presentation to the Boeing board. If they made no progress, they could demand a presentation to shareholders, or they could go to Congress or the FAA. As consummate professionals, they should have the ability to make a top quality determination.


In addition, Boeing is alleged to have tilted strongly toward the business-orientation for profits rather than the professional-orientation traditional at Boeing. The PQB staff should be sensitive to this as they make their continuous assessments looking specifically for this. Interviews and access to internal documents should be revelatory. The PQB would take their concerns to the CEO and the board, and they would be empowered to present their findings to shareholders in their annual report to the board that would be shared. Their governmental contractees would then be informed and be able to act appropriately. The engineers within the company would have no other formal way of working for that rebalancing, and failure in the marketplace works too slowly, and too dangerously.


CDC. The long running problem with ventilators would be exquisitely amenable to an PQB intervention. The COVID lab test issue happened so quickly that it might not have been avoidable – bad decisions under pressure are hard to avoid. But one can picture an alert PQB, activated for the acute problem of an impending pandemic, playing a very active role where the organization was clearly failing. A PQB would have been a strong protection against the political pressures of the Trump Administration, although it would have involved going to Congress and the press, and it may not have worked.


The chronic decline of the CDC is a different story. As detailed by Lewis, like many once-proud organizations, the CDC had migrated from an agency guided and populated by audacious disease fighters, to scientists who were excellent in their quality, but who looked more toward academic achievement in their writings and support of other actors in giving data of what had already happened, rather than an agency geared to active combat with the current problems of people and death. The CDC had been bureaucratized and encrusted in righteous isolation from battle. At the very least, however, the tradition of the CDC could speak through the PQB and wage a fight to be activist.


Actually, given the history of the CDC and the history of the rise and fall of the Bush pandemic alert efforts, it seems obvious that a major review of our structures and objectives has to be pending.


Various Medical Issues. A PQB would give medical professionals somewhere to go to with their concerns. The PQB could go to the Board and CEO, to higher governmental officials, to Congress. They could issue periodic reports. Transparency rather than obscurity would give professionals a chance to regain some traction in their concerns. As health care institutions continue to consolidate, major changes are needed at the highest governmental levels, and PQBs would be excellent sources for innovation ideas and continuous monitoring, and a prescient blogpost has indicated.



In running companies and government, nothing is assured. In the end, one can arrange administration into many different configurations, but in the end it is high character and skill that is telling. Nonetheless, properly arranging units and explicitly seeking high character and skill can increase the chances for justice to be done; transparency likewise.



Counter-arguments


It is worthwhile to consider possible objections to the PQB proposal. They would be generally that one is not necessary, or that they would probably fail.


Not necessary


Some might say that senior ex-officials already serve some of the PQB goals informally. But such interventions are sporadic, disorganized, and ad hoc. The possibility that ex-leaders will intervene as a deus ex machina solution to a dangerous situation or chronic displacement of goals seems quite unreliable. Informal influence worked to get Esper and Milley to recant their participation in the Assault on Lafayette Square – ex post facto – but it was ineffective with Redfield at the CDC.


Others say that having a professional voice all through the organization by having the professionals in administrative positions should serve to inform organizational actions with professional ethics. Unfortunately, that is rarely true. Most often, the professionals are seduced by the business mission of the organization and by the lure of their own advancement from conforming to organizational norms. They are told that their role is to bring along the professionals and pacify them. In short, it is common experience that professionals in administrative positions to be most often representing the organization to the professionals rather than vice-versa.


Some might say that the market should be the proper disciplinary force for a company. If we are dealing with television companies or computer companies or toaster companies, yes, true. But if we are dealing with large companies and institutions, or local monopolies like the ones that hospitals often enjoy, then no, the market will be inapplicable. Something else is necessary.


Some might go further and say a PQB would unnecessarily burden and distract a management team that needs support in its mission rather than further encumbrances. After all, the natural tendency of organizations is to become “blame organizations,” where the main motivational incentive for personnel is to stay free of blame and thus keep their jobs safe, while the best leaderships seek to make their organizations into “achievement organizations,” where failure in pursuit of aggressive goals is acceptable. A conservative PQB could be a hindrance rather than a professional quality corrective; the old guard can be anti-progress. The answer to this objection lies in the selection of excellent and experienced personnel for the PQB, but it has to be admitted, mistakes will be made. The PQB would not be a universal cure-all.


Could fail


While we hope for the wise views of seasoned veterans with high ideals and professional values, a PQB could easily find itself composed of overzealous, oppositional, regressive types seeking to promote their own pet projects, favoring personnel within the agency for personal reasons, and pursuing narrow idiosyncratic objectives. The PQB might be more trouble than it is worth, and seek to insinuate itself in areas where it should be intrude, and thus become more of a pest than a salutary corrective force. The PQB might become a haven for those who were passed over and have grudges to pursue. It would not be unusual for an administrative leader to be more invested in professional excellence than ensconced professionals, as in a hospital. The administrators could be the ones who know how to mount successful operations to instigate change (here).




The PQB might come to see its task not as upholding technical standards and being sensitive to the concerns of technical staff, but as supporting the company and reinforcing their business objectives. The backgrounds of the members of the PQB might actually be more pro-business than pro-professional standards.


The PQB could be captured, just as industry captures regulatory agencies. A difference here might be that regulatory agencies are often staffed by personnel weaker than the leadership of the company. The PQB leadership would be senior, and besides having the knowledge that comes with long experience, it would have no further aspirations for advancement or fears of losing a source of personal security.


Likewise, the company or agency might actively oppose the findings and attitude of the PQB, and be inured to its calls for change, and simply sideline them. From the initial appointment through many other points of vulnerability, the PQB can be disrespected and neutralized. The PQB could be subject to bad-will by the leadership of the unit. Having a PQB foisted upon an unreceptive agency or company leadership could be a recipe for conflict and failure, and should not be tried.


In all these instances, the key to the PQB effectiveness would be its membership, how they are selected, how they view themselves, and how active they are willing to be. Organizational structure can convey possibilities, but it cannot ensure personal actions. Any PQB would require the strictest attention to membership, and a common understanding of the role of the PQB.


In the end, perhaps the key point of leverage of the PQB would be transparency. Internal struggles could become more visible. Arguments could be widened to include more participants. Management would be forced to make tougher choices with the knowledge that their decisions could well be publicly reviewed. Even if the PQB members missed the mark on occasion, public knowledge of points of contention would be salutary. With transparency, if the administration were virtuous and the PQB in error, the truth would out, and the PQB reformed.



Conclusion


The science-based technical large enterprise is a distinctly modern creation. Their achievements have been immense; there is no escaping their necessity in the future. Thus, we should look at their failures and deficits with a mind to supporting them and enabling them to do better.


It is obvious that organizations change with time, although individual paths of growth and decay will vary. A very common pattern, however, is for the bureaucratic and administrative functions to overtake the influence of the basic scientific mission of the entity. I submit that a Profession Quality Board would be one solution to the problem.


The objections are not without merit. But, in the right organization and with the right people, the PQB could be just what the doctor ordered.


Budd Shenkin