Slow Death by Regulation, the Great Public-Sector Disease

Joe Woodard
July 31, 2020
When do the words “transparency” and “accountability” mean the opposite of what an untutored citizen might think? Why, when they’re passing the lips of a Canadian civil servant. The federal bureaucracy also seems the one place where the digital revolution made everyone less productive. And while this sounds amusing (if pathetic), the federal bureaucracy’s power and intrusiveness just grow and grow while the freedoms of individuals and voluntary associations shrink and shrink. Former citizenship judge Joe Woodard takes a wry look at these trends and with good humour tracks the deadly serious slide of Canada from a free society in which everything that isn’t specifically forbidden is allowed, into something sadder, darker and more constrained.

Slow Death by Regulation, the Great Public-Sector Disease

Joe Woodard
July 31, 2020
When do the words “transparency” and “accountability” mean the opposite of what an untutored citizen might think? Why, when they’re passing the lips of a Canadian civil servant. The federal bureaucracy also seems the one place where the digital revolution made everyone less productive. And while this sounds amusing (if pathetic), the federal bureaucracy’s power and intrusiveness just grow and grow while the freedoms of individuals and voluntary associations shrink and shrink. Former citizenship judge Joe Woodard takes a wry look at these trends and with good humour tracks the deadly serious slide of Canada from a free society in which everything that isn’t specifically forbidden is allowed, into something sadder, darker and more constrained.
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One crisp autumn morning I was heading out the front doors of downtown Calgary’s big federal building, the Harry Hays, when I saw two of my co-workers at Citizenship and Immigration Canada, mid-level federal clerks, waiting at a bus stop. They were heading across town to oversee a federal contract with a non-profit immigrant settlement agency. But waiting at a bus stop? “Why don’t you guys take a taxi?” I asked, and got back the by-now familiar, long-suffering glower of civil servants, oppressed by their sanctimonious and ambitious deputy supervisors. “It’s such a pain-in-the-ass getting a taxi chit,” one of them whined, “and we have our own bus passes, so it’s just easier to take the bus.”

At the time, I had almost finished a six-year term as a Citizenship Judge, during which I’d watched the bureaucracy slide further into regulatory arteriosclerosis. When I started in 2012, taxi chits were in a mail-room desk with a binder: sign one out, use it, and return the copy. By 2017, the chits were controlled by two clerks, with multiple binders and a shiny new safe with closely-guarded combination. A safe for taxi chits. Had there been a taxi-chit scandal? Thousands of dollars in purloined chits? 

Digitization has enabled soaring productivity in nearly all sectors except one: the bureaucracy, where it has instead facilitated the “CYA” syndrome.

No. An ambitious and therefore self-righteous deputy supervisor had seen an unexploited opportunity for micromanagement – called in our world “transparency” and “accountability”. So now, dispirited clerks rode public transit, wasting buckets of salaried hours. The bus-related lost productivity – five times the cost of a taxi? – never showed on a spreadsheet, but the meaningless reduction in taxi use did.  

Now, if you’re interested in really supporting some charity, the first precaution is to check its “cost of administration,” the percentage of its revenue spent on itself. Most charities run administrative cost between 12 and 16 percent. A lean outfit like Feed the Hungry gets down as low as 7 percent, while others might run at 19 percent. But any charity spending over 20 percent of its revenue on its office operation is probably spending too much on itself, and its executives might be crossing that faint line between raising money for a cause and promoting a cause to raise money.

In 2007, if memory serves, then Auditor-General Sheila Fraser reported that the Government of Canada’s administrative costs had already surpassed 30 percent. And that was then. The wasted hours have been snowballing ever since. For example: We had occasional road trips for Citizenship ceremonies in Banff, Red Deer or Lethbridge. When I started in 2012, Ottawa would give its overall approval and afterwards we’d submit our travel, motel and per diem meal claims, and we were done. 

By 2018, we had a new digitized travel system. Faster and simpler, right? Unfortunately not; now our expense accounts required pre-approval, post-approval and verification. If a staffer claimed a per diem for breakfast, an Ottawa clerk called their motel to verify there was no complimentary breakfast. On my last trip, I spent $238, but the additional administrative cost in my time, a supervisor’s time and a clerk’s time easily surpassed $500. After computerization. These supposedly time- and cost-saving technology upgrades became an opportunity for micromanagement, wasting everyone’s time.

The cost of administering the regulatory state has reached a shocking 30 percent of total spending – double the ratio of a well-run non-government organization.

It’s not just that Canadian governments of all levels claim half our economy, then waste probably one-third of that in shuffling accounts. It’s not just that our health-care and education systems have huge new cohorts of public employees with enormous appetites for public revenue. It’s not just that senior public servants now think that they’re the real builders of Canadian society – that we depend on them to “do good for us.” It’s not just that bureaucrats can now ignore our democratic institutions – Parliament, legislatures and councils. Our deeper problem is this: we’ve slid into a culture of control. Our world has changed. We now face a new kind of corruption.

Back when we had almost a Rule of Law and almost a free market – until around the 1990s, I would say – our primary vice, our basic expression of human self-centeredness, was greed. People always and everywhere wrestle with selfishness. In a free market, the constructive selfishness that is largely directed into creating the endless series of innovations, improvements, goods and services that have delivered never-before-imagined prosperity to an unprecedented number of people – can turn into destructive greed. There are ways of dealing with that, however, and we did.

With increasing regulation, the public service is robbing Canadians of ever-more of our historical freedoms.

But under new conditions, new corruptions come to the fore. Under a Rule of Regulation, the hunger for power and security arises in a different way. Among the clerks at the front wickets, it’s called CYA – Cover Your Ass. Among their supervisors, it’s called promotion. If the old marketplace selfishness was greed, the new public service selfishness is empire; not a lust for wealth, but a lust for advancement and regulatory power. In the public service, the new imperialism or lust for power is typically and paradoxically excused as transparency and accountability.  

Now, in centuries past, marketplace greed excused itself as efficiency, choice and profitability. When they actually occurred as such, they were in fact good, very good. But these mantras also obscured or excused gouging and squeezing. Such malfeasance could be restrained and corrected by legislators and regulators reforming and wielding the civil law. Today, transparency and accountability are touted as insuring the honesty of public servants. But au contraire, these mantras are precisely how ambitious bureaucrats rise through the bureaucracy, doing less, wasting more, and watching others trip.

The author as a happy Citizenship Judge, with even happier new Canadians.

Innovations intended to save time and money – like a digitized travel system – become instead devices for generating reports (transparency) and oversight (accountability), none of which contributes to, you know, productivity. Civil servants spend less time doing their job and more time reporting on it. Day in and day out, smart people earn good salaries and promotions by multiplying meaningless spreadsheets, informational “dashboards” and PowerPoint presentations. Supervisors rise on ever-widening pyramids of junior team leaders, engaged in projects called transformations, generating new reports and oversight.

The internal reporting is endless. When I started at the Citizenship Commission in 2012, the whole operation comprised a senior judge, one executive assistant and one clerk, overseeing 35 judges. By 2018, at one of my last video-conferences, we had a program director, another senior bureaucrat, the now-irrelevant senior judge, a legal expert (to advise the judges), a statistician compiling Excel reports, two clerks and an intern – for 31 judges.

Oh, the videoconferences! The statistician would present a completely meaningless spreadsheet on the judges’ monthly productivity – hearings heard, tests administered, ceremonies conducted, etc. But some judges would be reported as having “zero” in some categories or twice their real productivity in others. Nobody’s numbers bore any relation to what they’d really done. When the bureaucrats at the video-table were told this, they replied that the spreadsheet represented simply “a point in time.” When the judges suggested there was no point in time when those numbers bore any relationship to reality, they repeated unamused that it was “just a point in time.” Bureaucratic Bubble Time.

In creating a culture around “Cover Your Ass”, the bureaucracy is using consensus and group discussion with the effect, if not the goal, of shielding anyone from blame.

The problem of course is that the public service has no real bottom line, no real governing necessity or competitive benchmarks. The absurdity, then, is not entirely their fault. And so I hasten to add that the civil servant producing that meaningless Excel report was a really nice guy, devoted to his job. I liked him. He was so nice and so devoted, he was later promoted to regional director. He was also – an exception – well-liked on the shop floor. Most clerks enjoyed their work and felt proud of it. The best team leaders or supervisors, equally appreciating the job, had little desire to rise higher. But the upwardly ambitious made everyone miserable.

Bureaucratic advancement, never being at fault, is incompatible with Reality and Necessity. So no one ever makes a decision. I was copied in one email exchange in which a dozen bureaucrats debated for weeks the punctuation of a proposed, trivial internal directive. Committees gather in endless meetings, impersonally generating an anonymous consensus. So when an occasional disaster rears up, no one is ever to blame. The buck stops nowhere.

Once, chatting with a smart, late-career bureaucrat, I suggested that regulations had become arteriosclerosis, clogging the heart of government. All she could answer was, “How can you argue against transparency and accountability?” Indeed. A century back, how could anyone argue against efficiency, choice and profitability? The difference is this: in the once-almost-free market, under the Rule of Law, government’s righteous task was policing greed: enforcing legal contracts, punishing price-fixing and hammering monopolies – controlling greed by protecting competition.

But today, with more and more of the market falling under the Rule of Regulation, who regulates the regulators? Pursuing the public good, or at least safety and niceness, the public service can cripple the economy that feeds it while it remains the first fed. This is just what occurred after Covid-19 crashed upon our shores. Whole sectors of the private-sector economy were almost instantly shut down with only cursory regrets and partial compensation, even as the entire public sector continued collecting its full salaries and benefits while “working from home”, working partial hours or working not at all.

It may seem silly to call the corruption of the public administration, empire. Really? A band of sword-wielding clerks sally forth from their castles, ride into our villages, seize our meagre coinage and ride off with our daughters? Yet…our public universities are now marbled temples guarding the staircase to government – the one place where non-STEM students can find well-paying, long-lasting jobs. We practically worship before our bloating public health system, continually demanding more gold. Over the last 50 years, bureaucrats have seized the public schools, imposing mandatory socialism studies, carrying off our kids by teaching them that government will make them happy, or at least safe.

Journalism subsidies have failed to save the industry, will it adapt to placing more costs on consumers in order to provide them with high-quality content?
Can there be a solution to this never-ending regulation when the federal government so depends on the public service?

Reality check: nobody is shooting at us. As a citizenship judge, I interviewed hundreds of Nigerians, Filipinos, Lebanese and Venezuelans for whom Canadian transparency and accountability are Heaven on Earth. They’re from the other extreme, where survival and success depend on your family, clan or tribe – the Rule of Blood – or on who you know – the Rule of Graft. Without effective law, when your life depends on tribal loyalty or gangland greed, any attempt to enforce the Rule of Law is not only disloyal but suicidal, like reporting the Godfather’s nephew to the local police and expecting to be thanked. Long-ago academics, working in less sensitive but more clear-headed times, studied and reported candidly on this phenomenon of “amoral familialism” – the absence of an inbred culture of legality.  

If the Rule of Law is the virtuous middle state, it has vices at both extremes. The absence of effective law, a Rule of Graft or Rule of Blood, can cripple a society. If graft or blood are the crippling corruptions of law at one extreme, the Rule of Regulation is a crippling corruption at the other. The Rule of Regulation is not merely an excess of ordinary law. It’s a different kind of culture, all-enveloping, just as the Rule of Blood envelops a tribal culture. Under the Rule of Law, the law applies to all, law that is mostly ordered toward the Common Good, shared mostly by all. 

And under the Rule of Law, whatever is not specifically forbidden is permitted. This gives room for discovery, innovation and enterprise. And above all, it provides freedom, both reflecting and enabling a self-governing society. It’s critical to a certain kind of relationship between the individual and the state that encompasses what became known as Western countries and, though never perfectly realized, found its peak in the English-speaking democracies. The Rule of Regulation, however, is ordered to safety, stability, prevention and control, seeking quixotically to render all of life predictable. Over time, the relationship between what is permitted and what is forbidden shifts.  Eventually, whatever is not specifically permitted is forbidden. Just like in actual tyrannies.

People being naturally self-centred, cheating is inevitable in any society. Under a Rule of Law, people are innocent until proven guilty, so catching and deterring cheaters is counted as a success and is all that anyone really expects. In the meantime, we’re all left alone until a few of us screw up and get caught. Under the Rule of Regulation, catching cheaters is evidence of failure. Nobody’s stolen taxi chits yet, but they might. Even misdemeanors that are identified and prosecuted prove the need for new rules to forestall any repetition. Regulations must prevent cheating from happening in the first place. We must check the tick-boxes to make us good.

Over the last 20 years, the federal public service has grown from ball-park 210,000 to 280,000, the very period when work processes have been largely digitized – technical progress that should have meant more done by fewer (as it has in the private sector). Instead, senior bureaucrats gently oppress their minions, battling possible fraud and now promoting political entitlement, when the real waste is personal empire-building, spilling into the broader culture. 

Bureaucracy does not work in a world of real individuals, discerning real needs and opportunities, like the market. It necessarily regulates abstract categories, obligations and entitlements. Given total freedom from necessity, absent any bottom line, the multiplying musical chairs played for promotion and minions nurtures a multiplication of regulatory categories, valued because they’re divorced from productivity. All of today’s reigning entitlement categories – ethnicity, language, Indigenicity, sexuality, disability, earth-religiosity – were conceived in public universities, but nurtured with regulatory directives in the public service – the one place large numbers of non-STEM university students find jobs.

A congratulatory email once came through my Inbox praising a bureaucrat who was being promoted from assistant deputy something to deputy something. Congratulations. But the phrase used to praise her worthiness for promotion was her dedication, over the past 20 years, in “building Canadian society.” Building Canadian society. Old School folks might assume that Canadian society is built by free and self-reliant Canadian citizens, cooperating in their shared enterprises and voluntary organizations, and that the public service is supposed to build law courts, roads and frigates as delegated by our democratic representative assemblies. 

But today, any parliament, legislature or council that tries to bridle its own regulators finds itself crippled by endless glitches and minor scandals, lacerated by a thousand cuts, dutifully leaked to the media and blamed on the government’s own uncaring policies. So any government desiring re-election cuts an implicit Devil’s Deal with the bureaucrats: leave ’em alone, and they’ll make you look good in the media. Intrude, and they’ll make you look uncaring, inept or both. And the senior public servants aren’t conspiring in all this; they’re just doing their jobs.

Remnants of the Soviet Gulag, where millions perished. (Source: Gerarld Praschl, Creative Commons)

It’s bizarre to think of our once-vibrant Western Civilization hamstrung and paralyzed by a principle so innocuous as CYA, Cover Your Ass – like Gulliver in the land of the Lilliputians, restrained by a thousand silken threads. But the Soviet Gulag’s cruelties were driven in part by just that principle. Productivity wasn’t the issue. Camp commandants were terrified they’d be ratted out for any kindness toward their counter-revolutionary prisoners, while they also lusted to climb over the bodies of their revolutionary colleagues. Ten thousand deaths is “just a statistic.”  

Of course, modern Public Administration is much more compassionate, even defined by compassion – of the categorical sort. Early 19th century French political philosopher Alexis de Tocqueville prophesied as much, writing in Volume II of his magisterial Democracy in America that the  power of a long-lasting democratic state would become “absolute, minute, regular, provident and mild,” that it would be devoted to our happiness, that it would “provide for [people’s] security, foresee and supply their necessities, facilitate their pleasures, manage their principle concerns.” That it would, in erasing risks, also erase our freedoms. The maternal tyranny of the future would “cover the surface of society with a network of small, complicated rules, minute and uniform.”

De Tocqueville – French political philosopher Alexis de Tocqueville predicted the smothering asphyxiation of freedom we are now experiencing.

What Tocqueville did not and perhaps could not foresee was that the civil servants themselves would grow so insulated from material necessity that they would gradually destroy the economy that feeds them, like a parasite accidentally killing its host. Even contemporary commentators like James Burnham or Christopher Lasch never saw that coming. Who could have predicted that the Universal Administration might become so isolated within its regulatory bubble that it forgets its cities are still made of wooden houses, concrete buildings, gas-burning furnaces, flushing toilets and burger-eating taxpayers? In March and April, Canada’s public-health sector and most of the political class eagerly chose protecting “health” over “the economy” (or “profits” as some put it).   

Still, all this may endure. All the waste and bafflegab might survive, limping on into the foreseeable future. We must marvel at the enormous productivity of the modern industrial plant, since it’s already proven able to tow our existing public sector. In ancient Egypt, blessed by the predictable fertility of the Nile, the meteorologist-priesthood harnessed all the free time of their peasantry, between planting and harvesting, harvesting and planting, in building great pyramids, keeping their work levies docile for three millennia. Chinese mandarins, serving the Divine Emperor, kept their peasants busy repairing the irrigation ditches of their great alluvial plains. Apostate Marxist Karl Wittfogel called this “Oriental Despotism” or the “hydraulic society.” Our modern equivalent is the time we’re forced to sacrifice on religious recycling. No one ever crunches the numbers on the energy cost of recycling, because energy-saving is not the point. They regulate, therefore they are.

Rule of Regulation stifles innovation and discovery by indoctrinating citizens that whatever is not explicitly permitted is forbidden.

Bottom line: we no longer live in the nature of self-reliant homesteaders, under a Rule of Law. We live in the Public Administration of city-dwellers, under the Rule of Regulation – an entirely different master. Public-service spokespersons and our docile fellow citizens constantly warn about other people’s greed, greed, greed. But that merely serves the accumulation of regulatory power, power, power. It’s not a “conspiracy.” It’s a new faith, the Religion of Regulation, leeching out into the whole culture. We all want regulations to keep us safe and secure. And at least nobody’s shooting at us. 

Joe Woodard (PhD, Claremont) spent 15 years as an academic, 15 as a journalist (Alberta Report, Calgary Herald), and 11 as a federal tribunal judge, while helping wife Kathy raise 10 children.

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