America Has Gone Off the Rails. Steven Brill Sees Ways to Get It Back on Track.
According to Gallup, in the first week of January 2004 more than half of surveyed Americans were satisfied with the direction of the country. Within a few weeks, however, that number had fallen below 50 percent. It has never recovered. Since the 2008 financial crisis, it has not cracked 40 percent. For well over a decade, a supermajority of Americans believe the country is headed in the wrong direction. Pew surveys consistently show that a majority of Americans believe that their children will be financially worse off than they are. At the present time, citizens do not believe that America is great.
This perceived decline and fall of the United States has inspired a 21st-century cottage industry of books devoted to how things went off course. They range from the journalistic (George Packer’s “The Unwinding”) to the sociological (Robert Putnam’s “Our Kids”) to the economic (Thomas Piketty’s “Capital in the 21st Century”) to the political (Jacob Hacker and Paul Pierson’s “Winner-Take-All Politics”). Many of these books tackle similar themes: the rise of economic inequality, the increase in political polarization and the erosion of the mid-20th-century social contract that existed for white men. We are living in a golden age of authors telling Americans that we no longer live in a golden age.
In the Age of Trump, the bar for adding something new to this genre is high. Steven Brill, a writer, lawyer and entrepreneur who founded The American Lawyer and Court TV, offers his take in “Tailspin.” The book was born when Brill was “stuck in traffic in a taxi one night on the Van Wyck Expressway coming home from Kennedy Airport.” Fortunately, “Tailspin” is better than its grumpy origin story. Brill describes a slow-motion process of perverse meritocracy in which, as one law professor tells him, “the elites have become so skilled and so hardworking that they are able to protect each other better than ever before.” Or, as Brill labels it, “Moat Nation.”
“Tailspin” distinguishes itself within the America Gone Wrong genre in three important ways. First, it comes to life when Brill focuses on the legal shifts and stalemates that ushered in the country’s current predicament, examining how these changes rippled across the rest of society. The rise of executive compensation practices linked to stock prices encouraged executives to prioritize short-term profits over long-term investments. A series of Supreme Court cases, ending with Citizens United, enabled corporate speech to play a powerful role in national politics. The growth of super PACs and lobbyists in Washington guarantees that any piece of appropriate regulation will be watered down — first in Congress and then in the implementation stage. The federal government’s approach to fraudulent financial firms has shifted from the criminal prosecution of executives to the levying of fines. All of the book’s chapters on the law crackle with energy. (In contrast, the chapters on globalization and political polarization seem rote.)
Second, as the subtitle suggests, Brill leavens the gloom of “Tailspin” with vignettes of individuals and organizations working to counteract the overarching negative trendlines. These range from college presidents who prioritize admitting deserving, underprivileged students to OpenSecrets, which provides greater transparency into campaign contributions. It may sound medically impossible to get revved up about sober, middle-of-the-road think tanks like the Bipartisan Policy Center or the Center for Responsive Politics. Brill nonetheless manages to inspire with stories of government made good. His account of how David Kappos succeeded in turning around the United States Patent and Trademark Office a decade ago is genuinely uplifting.
The third way in which “Tailspin” distinguishes itself is the number of times the phrase “unintended consequences” appears in the book. Many of the legal and regulatory changes that Brill excoriates have counterintuitive beginnings. Who helped spearhead the growth of the commercial speech movement? The consumer advocate Ralph Nader, who sued the Commonwealth of Virginia to allow pharmacies to advertise drug prices. “Talk about boomerangs,” Nader told Brill in 2017. “That case was the biggest boomerang of all time.” Similarly, the very first political action committee was created in 1943 by a labor union. Brill describes efforts to bring more minority members to Congress as “another reform effort that boomeranged,” because minority Democrats allied with Republicans to rewrite congressional districts and eviscerate districts held by white Democrats.
Brill blames the tortoise-like pace of government rule-writing on due process run amok. Laws like the 1946 Administrative Procedure Act mandated citizen feedback to new regulations, but Brill argues that interest groups have weaponized due process to guarantee gridlock. He also recaps his searing 2009 New Yorker essay about incompetent New York teachers, a product of union bargaining gone very wrong. In almost all of “Tailspin,” a well-intentioned liberal reform goes badly off the rails.
Brill describes so many unintended consequences that he may leave the reader skeptical about whether any reform efforts can improve matters. He would have been better served to devote more attention to systems that actually work. While “Tailspin” bemoans the recent trend of delayed flights, for example, it does not discuss the improvements to airline and airport safety that occurred during the same period. Similarly, while Brill devotes a few pages to it, a deeper dive into the failure and subsequent success of the Obamacare website HealthCare.gov would have been illuminating.
A more serious problem with “Tailspin,” however, is that Brill never quite makes the connection between laws and norms. Toward the end of the book he talks a lot about common-sense reforms that would provide public goods, eliminate red tape and still provide reasonable due process. These will sound intuitively appealing to most citizens. But many of the trends that Brill identifies, like political polarization, have their origins in the erosion of norms, not laws, and the real question is whether Americans can trust one another enough not to abuse less legalistic systems. Changing laws is easier than changing norms. On this point, Steven Levitsky and Daniel Ziblatt’s “How Democracies Die” is probably more instructive.
Nonetheless, “Tailspin” adds value. Brill is a keen observer of well-intentioned ideas, like trade adjustment assistance, executed badly. Much of this book makes for depressing reading. Still, the interviews with those trying to fight the powers that be make the book a worthy contribution. The words that stay with me most are from Sheila Krumholz, the executive director of the Center for Responsive Politics. When asked whether she gets frustrated that not enough people care about their focus on dark money in politics, she said: “We need to be here building the record so that when the opportunity arises, when people of good faith on both sides of the aisle decide that enough is enough, we will have armed them. … The system has careened off the tracks, and everybody knows it. But I’m impassioned, not discouraged.” In a downbeat era, “Tailspin” offers some modest ammunition for hope.
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