Jared Kushner: Think You Can Kill 13(c)?

This week Donald Trump appointed his son-in-law to find and destroy stupid federal programs as part of a White House office of “American Innovation”. The same son-in-law is responsible for relations with China and finding peace in the Middle East, but never mind.

Jared Kushner is in excellent and honorable company. In 2011, Obama tried the same thing, just as in 1993, Bill Clinton put Al Gore in charge of Reinventing Government. Gore led what was, by some counts anyway, the eleventh such federal task force in the twentieth century. Gore even created the Hammer Award to recognize government efficiency. He would send a $6 hammer, a striped ribbon and an aluminum-framed note to recipients. The award parodied the Pentagon’s infamous alleged $436 hammer.

He gave out a few, but Al Gore still has a big bag of hammers lying around somewhere. Democracies are much better at starting things than ending them. At best, legislatures resort to extra-legislative processes like military base closure commissions or the Texas Sunset Commission to kill things.

I learned that wasteful federal programs are easy to find but tough to kill when I was put in charge of a really stupid one. I even got agreement at the highest levels of the Clinton Administration to kill it. The program is still alive in 2017.

In 1993, I launched a new federal agency in the Labor Department devoted to helping companies build better workplaces. Some of my colleagues had generously contributed to my new enterprise by transferring to me all manner of federal detritus. One of the programs transferred to my benevolent care was known simply as 13(c) because they enforced  Section 13(c) of the Urban Mass Transportation Act. The program had a total of thirteen employees — who turned out to be wonderful, dedicated people.

Section 13(c) requires the Labor Department to certify that no mass transit employee is ever disadvantaged by the spending of mass transit funds. Seriously. The US Transportation Department cannot spend a nickel without the permission of the folks at 13(c) certifying that the spending will in no way disadvantage a current mass transit worker. Check it out here.

I paid no attention to 13(c) until January 17, 1994. At 4:30am that morning, a thrust fault ruptured in the San Fernando Valley of Los Angeles. It was more bomb than quake, producing the highest ground acceleration ever recorded by seismic instruments. Thirty people were killed immediately and another thirty died in the hours and days that followed. More than 9,000 people were injured. The Northridge quake destroyed parts of Interstate 5, California’s aorta as well as the Antelope Valley Freeway. Within a day, the new President and several of his cabinet secretaries, including my boss at Labor, were on their way to Southern California to provide tangible federal support for rescue and reconstruction. Suddenly, federal transportation funds were not an abstraction.

The Deputy Labor Secretary called and advised me that the US government could not release emergency transit funds because “something called Section 13(c) approvals” were still pending. Those funds were now needed to pay for hundreds of busses and vans to create new transit arrangements. To quote the DOL website (which, like most websites, did not exist in 1994):

“This Federal statute requires that employee protections, commonly referred to as “protective arrangements” or “Section 13(c) arrangements” must be certified by the Department of Labor and in place, before Federal transit funds can be released to a mass transit provider.”

I called in the woman who ran 13(c), an experienced and talented federal professional.

“How much transit money are we holding for Southern California?”

“We don’t know”

“How can we find out?”

“We have no way to find out. That’s not how we are organized.”

“OK, bring me the files on every federal transit program in Southern California. I am good at addition.”

“We can’t do that. The files are not organized that way.”

“Then we need to go through every single file and pull all projects that take place in Southern California. I can help you pull them, but I am releasing all the funds.”

“You can’t do that”

“Why not?”

“Because we have not certified that these projects meet the necessary protective arrangements”

“It’s true that you have not certified them. Which is why I am going to certify them. All of them. Stupid in normal times is expensive and inconvenient — but stupid in an emergency is dangerous. We really need those files.”

“We cannot get started until morning”

“Absolutely not. This team stays in this building until those files are on my desk. All night is no problem. I am ordering pizza and will come up and help.”

I had the files by 10pm, I signed my name to a zillion forms and tens of millions of dollars were available for Los Angeles. Better, certainly from my view anyway, 13(c) stayed out of the newspapers (something it is fairly good at). Not a single worker or union ever complained – indeed rebuilding LA created a lot of good transit jobs.

By spring of 1994, Gore was in full search for needless federal programs to kill, so I quickly nominated 13(c). In no other part of government do we protect workers by withholding federal funds. Not for the military, for health care, for agriculture, or for any of the zillions other federal expenses. Why impede transit spending this way? This program was very small (we could easily redeploy the staff to more productive programs), it was unbelievably rigid (it added months and sometimes years to the funding of federal transit projects), every transit agency in the country hates it, it had one supporter — a tiny, politically irrelevant transit union, and it had recently demonstrated its potential to endanger a federal emergency response. What could be easier?

I spoke with Gore. To my surprise, he knew all about the program (the level of detail about tiny federal programs commanded by professional politicians is astonishing). He wanted to make sure that Congress would support killing it. “You need to make sure Norm Mineta is on board“.

Made sense. Norm Mineta chaired the House Committee on Transportation and, by accident, was someone I had known since I worked on his campaign when he was my Congressman from San Jose. Also, he and I took the red-eye from San Francisco to DC each week.

Mineta: “13(c) is a relic. Love to kill it. Tell Secretary Reich and Gore that I’m fine letting it go. But you should probably check with Leon Panetta at OMB.”

Leon Panetta was a former Northern California Congressman that I remembered from when he was a Republican. He lived in Carmel and most Sunday nights was on the same flight. He agreed that 13(c) was useless (not his term) and was surprised that it was still around. He had no problem killing it.

We were ready to go. The combined powers of the executive and legislative branches of a powerful government would soon rid itself of this pimple on the body politic. Hey, maybe I would get a Hammer Award!

It never happened. The United States Department of Labor still enforces section 13(c) of the Federal Transit Law, even though the statute is now located at Section 5333(b) of Title 49 of the U.S. Code. It is a tiny, trivial program — but it delays hundreds of millions of transit dollars each year and adds millions of dollars of cost to these programs — and no value.

Trump wants dumb federal programs to kill? Here is a tiny, stupid program without an advocate in the world outside of a politically impotent transit union. Transit professionals throughout the land despise 13(c) — I literally have found nobody who has ever seriously defended it (including, truth be told, many of the program’s own staff). But the political work to terminate even small, useless programs is enormous and the payoff is tiny. The political calculus has not changed in the five hundred years since Machiavelli advised his Prince on the danger of political reform:

“…there is nothing more difficult to carry out nor more doubtful of success nor more dangerous to handle than to initiate a new order of things; for the reformer has enemies in all those who profit by the old order, and only lukewarm defenders in all those who would profit by the new order…”