It would be valuable to catalog an assortment of programs that have been adversely affected, to varying degrees, by sludge. Ideally, such a catalog would be global rather than national. Focusing on the United States, I will offer a mere sketch here, limited to four areas: benefits programs, occupational licensing, student visas, and fundamental rights. Some of the discussion will borrow from a superb treatment by Professors Pamela Herd and Donald Moynihan, whose extraordinary book, Administrative Burden, offers a series of case studies of the effects of administrative burdens.1 That treatment is relatively comprehensive, and because the situation is constantly shifting and varies from nation to nation, we need much more like it. My modest goal here is to illustrate the problem and to draw some broader lessons.
The central point is simple. In some contexts, sludge is a serious problem, but in others, the government has ensured that it is negligible. It would be valuable to offer a similar sketch for the private sector, showing (for example) that some businesses minimize sludge for customers and that others maximize it. Broadly speaking, that sketch would look a lot like this one.2 For example, many companies make people spend a great deal of time and effort to cancel subscriptions. They hide relevant terms so that people have to wade through sludge to find them. They make certain terms essentially unintelligible to most consumers. For every use of sludge discussed here, there is a business analog. Sludge is often a form of manipulation; as we have seen, it is a component of dark patterns, especially online. But as in government, so too in the private sector: some of the harms of sludge are inadvertent, a result of paying too little attention to the problem.
With respect to sludge, a model program is Social Security, which is simple and in many ways automatic—something close to a sludge-free zone. As Herd and Moynihan put it, “the biggest bookkeeping organization in the world banished burdens.”3 The US government takes care of a lot of what might have been turned into sludge, and it generally requires citizens to do very little. One reason is that the Social Security Administration (SSA) tracks peoples’ earnings and determines eligibility and benefit levels automatically. If you are eligible, you can enroll online or go to one of the nation’s 1,200 field offices.4 After you do that, you are likely to receive direct deposits into your bank account within a month.5 In fact, Social Security can be seen as a kind of model. Dealing with an older population, it puts few demands on recipients. It operates a bit like modern departments of motor vehicles, which automatically renew drivers’ licenses after a few clicks and send them in the mail. For many retirees, the money comes with hardly any friction.
As a matter of history, there is a large irony here. In the 1930s, the supposed administrative challenge was taken as a serious objection to the very idea of Social Security.6 But the federal government succeeded in meeting that challenge. It did so in part through the creation and use of Social Security numbers, which make it much simpler to track people’s earnings over their entire working lives.7 The SSA has worked hard and mostly successfully to make things easy for beneficiaries, replacing lost Social Security cards, taking applications, updating records, and ensuring the accuracy of payments.8 For beneficiaries, the program is generally working. The poverty rate among older adults is now just 9 percent; if Social Security were not included in their income, it would be 40 percent.9 Almost one-third of beneficiaries rely on the program for at least 90 percent of their income.10
Other programs also show high take-up rates, in large part because of low levels of sludge. A prime example is Medicare Part A, for which individuals are automatically enrolled upon application for Social Security retirement or disability benefits.11 Data from the early 2000s, on which the US Department of Health and Human Services relied for an Issue Brief in 2012, indicates that Medicare Part A features a 99 percent take-up rate.12 (Note here the spectacular results of automatic enrollment.) Medicare Parts B and D are not too far behind, at 96 and 93 percent, respectively.13
The level of sludge is also relatively low for the Earned Income Tax Credit (EITC), a wage subsidy for low-income workers.14 Most programs designed to benefit poor people have dispiriting take-up rates of between 30 and 60 percent; for the EITC, the rate is about 80 percent.15 That is excellent news, for the EITC ranks among the most effective of US antipoverty programs. Because it makes work more remunerative, it significantly increases labor force participation.16 The EITC also makes a major dent in the national poverty rate and helps children in particular, with beneficial effects on their health, their cognitive abilities, and their long-term educational prospects.17
For the EITC, the relatively high take-up rate is a product of relatively low levels of sludge. The paperwork requirements are modest; a standard tax return is all that is necessary. The Internal Revenue Service (IRS) sends simple, clear reminders to people who appear to be eligible, and the reminders significantly increase participation rates.18 In that way, it helps to overcome the problem of cognitive scarcity. The IRS also runs voluntary programs that provide free tax help. Because participation involves little in the way of frustration or stigma, the psychological costs are low.
To be sure, the EITC is not as simple or automatic as Social Security, and sludge reduction thus remains a high priority. If 20 percent of eligible people are not receiving a potentially life-changing benefit, there is a serious problem. The IRS almost certainly knows enough to enroll people automatically and send a refund to eligible taxpayers, and that is probably what it should be doing.19 Nonetheless, the administrative burdens for recipients are much lower than they might be.
It is reasonable to ask: Why? In the context of Social Security, national politicians had strong incentives to reduce sludge, and a lot of older people depend on the money, which means that there is a politically powerful group in favor of sludge reduction. For the EITC, the secret of relative success is an unlikely coalition between business interests and those seeking to help the working poor.20 Business interests much like the EITC because it creates an incentive for low-wage work. Those who care about the working poor like the EITC because it makes the working poor less poor. The two interests have been able to work together—not to make the program as generous as it might be, but at least to reduce sludge.
Unfortunately, many benefits programs impose more daunting burdens. The Supplemental Nutrition Assistance Program (SNAP), formerly known as the Food Stamps Program (FSP), provides nutritional in-kind benefits for low-income families.21 It is the largest nutritional program in the United States, serving more than thirty-five million people per month and providing average monthly benefits of roughly $130 per person.22 SNAP has been shown to improve food security and improve the well-being of children in participating families.23 To be eligible, applicants must have a gross monthly household income within 130 percent of the national poverty line and also a net monthly household income (after deductions of, for example, housing and childcare) within 100 percent of the national poverty line. In addition, household assets must be below a certain threshold.24
In comparison with other social assistance programs, SNAP has a relatively high participation rate.25 The USDA estimated the SNAP annual monthly participation rate as 85 percent in 2016.26 Even so, a significant percentage of the eligible population does not receive SNAP benefits. One reason is sludge.27
Significant levels of sludge can be found in both the application and the recertification processes. The USDA has concluded that different levels of sludge were a large contributor to differences in participation rates across states.28 One study found that the average SNAP application took more than five hours to complete. It included two trips to the local office and out-of-pocket application costs that averaged about $10.31. A survey found that most application forms were more than ten pages long and included warnings of high fines and jail time if people made erroneous statements on their form.29 Application forms may include obscure questions, asking applicants whether they own a prepaid burial plot (twenty-nine states), whether they sell blood (two states), or whether they have any bingo winnings (one state)—and affirmative answers require documentation.30
The good news is that forty-seven states have adopted online applications, and many have switched to allowing phone interviews. At the same time, applicant responses have been mixed.31 On the government side, decision processes can be slow, thus delaying or preventing the receipt of needed benefits. A study finds that people who experience monthly food shortfalls due to seasonal unemployment often do not receive their benefits within the thirty-day mandated application decision window—and by the time a decision is reached, they no longer require the benefits.32
All this should be sufficient to show that for many people, the application itself can be challenging to complete.33 Recertification also imposes sludge on applicants. To remain in the program, recipients must prove eligibility in specified time intervals that vary by state. Frequently, they lose program benefits and must reapply, creating significant costs for both administrators and recipients.34 In California’s SNAP program (CalFresh), recipients must complete an interview by the end of the calendar month in which their recertification period ends; if they fail to do so, they lose their benefits.35 Interviews are randomly assigned across the month, which means that some participants have up to four weeks to complete postinterview requirements, while others have only a few days.36
An important study found that the timing of the assigned interview had a significant impact on recertification success, with each day later in the month producing a 0.33 percent increase in recertification failure as opposed to the previous day.37 Especially important was the opportunity to reschedule missed appointments; that opportunity was of course significantly reduced if recipients were assigned an interview at the end of the month. While many of the recipients who initially fail are eventually recertified, some are not and permanently leave the program.
The increased sludge introduced by recertification processes often screens out the neediest households and decreases targeting efficiency.38 In response, some states have tried to make recertification procedures easier. But their effort has been complicated by state-level administrative processes that can penalize states for issuing benefits to people who are not eligible. Those processes have led states to adopt stricter standards and procedures for both recertification and application.39
Temporary Assistance for Needy Families (TANF) is a block grant, which in 1996 replaced Aid to Families with Dependent Children (AFDC) as the main federally funded cash assistance program for poor families with children.40 TANF’s estimated participation rate has dropped every year since it was enacted, from a high of 69 percent of eligible households in 1996 to just 25 percent in 2016.41 In 2018, TANF reached merely twenty-two of every one hundred families with children living in poverty nationwide.42 Sixteen states had a TANF-to-poverty ratio of less than ten in 2018, meaning that for every one hundred families living in poverty, ten or fewer receive TANF cash assistance. Most of those states are situated in the South and Southeast. In comparison, California had a ratio of sixty-eight.43 One result of these differences is a severe disparate impact on African American children, who disproportionally live in states with low TANF-to-poverty ratios.44
Sludge is a significant source of the problem. The application process for TANF can take a great deal of work. That process often involves lengthy application forms, in-person visits to distance offices, and a copious amount of supporting documentation.45 In addition, TANF includes “work first” policies in many states, which require applicants to attend orientation sessions or at least to conduct a job search in advance of the eligibility determination.46 New York City has had an especially complex application process; at one early stage, it included two eligibility interviews in different locations, a home visit by an agency staff member, a mandatory workforce orientation, and daily job search classes for thirty days.47 Such requirements primarily keep two groups from participating: (1) people who would receive relatively few benefits and do not think the procedure is worth it and (2) people who face such serious social disadvantages that the requirements place an insuperable burden on them.48
As with SNAP, many states now allow online applications.49 Unfortunately, many basic online application tools are still missing. For example, most states do not allow applicants to update information after the application is submitted or permit applicants to check their application status online.50 Another form of sludge, particularly relevant for TANF in light of its work requirement rules, consists of limited business hours at welfare centers, which impose additional barriers on people who are working.
TANF eligibility rules are often complex, and they differ significantly from state to state. For these reasons, a lack of awareness of eligibility can be a major hurdle to participation.51 Even if people know that they might be eligible, they might not know how to apply for benefits or might misunderstand key program rules.52 Finding out about the rules and application procedures imposes learning costs, with disproportionate adverse effects on identifiable groups.53 There is also evidence that many TANF recipients show present bias and therefore do not take account of sanctions based on cash-assistance time limits until it is too late.54 A noteworthy aspect of TANF participation is the relatively low participation of eligible Hispanic parents.55 The low participation rate might be a product of fears about the legal consequences of needing assistance; it might be related to misunderstandings about program eligibility for legal immigrants.56
For the Affordable Care Act (ACA),57 sludge has been a major problem, and the human consequences have been severe. A primary goal of the ACA is to give people access to low-cost health insurance and, in the process, to ensure that people who have preexisting conditions or expensive health problems cannot be denied insurance. If the ACA operates as it was intended, it should make a massive dent in the size of the uninsured population. And by doing that, it should significantly improve health outcomes, reducing both morbidity and mortality.
In many ways, the ACA has indeed operated as it was intended. From the beginning, however, the federal system has created large-scale challenges, in part because of the volume of sludge. Sharply opposed to the very idea of Obamacare, twenty-seven states simply refused to adopt exchanges, which were supposed to provide people with a simple, relatively sludge-free way to buy health insurance.58 As a result of that refusal, citizens in those states have not had exchanges at all. They have had to apply through federal exchanges, and that is usually more cumbersome. To summarize a long story: Successful applicants initially receive a notice from the federal government that they are eligible for the state Medicaid program. The federal government then transfers the file to the state. After that, the state determines eligibility.59 This process can take months, and it has left millions of people in limbo.
In the first years of the ACA, the Obama administration worked hard to reduce administrative burdens and to eliminate sludge. It publicized the program in an effort to increase the likelihood that people would know what was available, and it also took aggressive steps to simplify the enrollment process. From the standpoint of the law’s proponents, not nearly enough was done, but they saw it as a start. By contrast, the subsequent administration, unenthusiastic about the law as a matter of policy, took steps in the opposite direction. For example, it reduced funding for publicity. It shortened the sign-up period.60 It took a variety of other steps to decrease simplicity and to ramp up the sludge.
In the program’s initial years, participants in the ACA who enrolled through federal exchanges were automatically re-enrolled in their plan if they did not notify relevant officials of eligibility changes or initiate action to select a new plan. In February 2020, the Trump administration released a proposed rule that would end automatic re-enrollment for enrollees whose premiums were fully paid by a tax credit and instead require those individuals to reselect their health insurance each year.61 The Center on Budget and Policy Priorities has urged that this sludge-producing change would disproportionately hurt low-income enrollees.62
When HealthCare.gov was initially launched in October 2013, it encountered an assortment of problems, creating a national controversy. In short, the site did not work. Public officials immediately made substantial improvements, eliminating the main problems, cutting sludge, and greatly easing navigation. The ACA itself created Navigator programs that provide outreach, education, and in-person assistance to people attempting to obtain access to the site. Such in-person services give people a helpful tutor for navigating the sludge. In a sense, they are sludge-busters. They also provide more personalized advice than the website or hotlines might be able to provide. For example, a Navigator can help people to determine whether a family member temporarily sleeping on their couch qualifies as a tax dependent.63
The 2013 budget for the Navigator programs was $100 million, but the Trump administration reduced that number to just $10 million in 2017.64 It is difficult to know the precise effects of the cuts, but with greatly reduced funding, outreach and educational activities have had to be scaled back. At the same time, in-person assistance has been reduced. A likely result is that fewer people were able to sign up for coverage.65
During the Obama administration, the federal government itself did a great deal to publicize the availability of health insurance. Among other things, it directly reached out to people via email, encouraging them to sign up or re-enroll. During the Trump administration, these activities were much reduced. In November 2017, for example, the relevant department sent emails with sign-up options only to people with current healthcare plans. It declined to email others listed in the government’s database of some twenty million people who had coverage at some point or who had explored HealthCare.gov.66 The result was to leave many people unaware of their options or reliant on their own research (or the reduced number of public ACA advertisements). Here, then, is a situation in which information costs amount to a form of sludge.
The ACA offered states a financial incentive to expand Medicaid eligibility, and thirty-seven states accepted.67 All states permit people to qualify for Medicaid based on a set of factors, including income, household size, disability, and family status. The expansion permits people in relevant states to qualify on the basis of income alone.68 In an effort to limit the reach of the program, the Trump administration urged states to adopt work requirements for Medicaid beneficiaries, who have to submit additional paperwork to demonstrate that they are employed or in school.69
Meeting these work requirements has proved to be particularly challenging for some Medicaid beneficiaries. Nationwide, nearly 80 percent of potentially eligible beneficiaries live with a worker, despite not working themselves. In Arkansas, the first state to impose a work requirement,70 more than three-quarters of enrollees subject to the new work requirement had no access to a vehicle, no internet access, less than a high school education, a serious health limitation, or a household member with a serious health limitation.71 Despite these barriers, many in fact had jobs, but simply did not meet the hours requirement in order to qualify for Medicaid.72
The real sludge came when those who actually met the requirement struggled to report it through their state’s online system. First, many in Arkansas’s program lacked a personal computer at home, so they had to borrow friends’ computers or obtain access to the online portal through a public library.73 Second, sludge-filled websites made it difficult to obtain access to Medicaid reporting accounts and understand what to report. One participant reported, “I had to use a friend’s computer and they had to help me … they are pretty smart and it took us over 10 and a half hours just to set [my account] up in the first place.”74
Medicare is a nearly universal program aimed at older people.75 As noted, those who are eligible for Social Security are usually eligible for Medicare too, which means that in terms of enrollment, things are pretty simple. Nonetheless, Medicare has a great deal of sludge, which comes from the highly complex process faced by Medicare enrollees when choosing among services. What is the right supplemental insurance plan? What is the right prescription drug plan? Is a Medicare Advantage Plan a good idea? These are difficult questions, and older adults often suffer from cognitive decline.76 Herd and Moynihan quote a Medicare beneficiary who notes, “That’s what gets me, they wait until we retire to make it complicated.”77
A great deal of behavioral evidence finds that Medicare beneficiaries are making poor choices and losing money in the process.78 For that reason, there is a good argument that the government should simplify the process with the use of online tools, telephone assistance (with shorter waiting times), and customized recommendations.79 It would be easy to imagine a nearly sludge-free process for people who prefer automaticity, accompanied by a more complex and informationally demanding process available to people who would like to make their own choices.
To begin work, many people are required to obtain licenses. It seems reasonable to say that people cannot be architects, teachers, or nurses unless they receive some kind of certification. But what do they have to do, exactly? Across different professions and regions, the burdens of occupational licensing greatly vary. But in many cases, they are far too high. The sludge is overwhelming. It has serious adverse effects on people’s lives. A whole book could (and should) be written on this topic. I touch on a few highlights here.
On average, occupational licenses in the United States require 248 hours of coursework.80 They also require people to have some sort of experience before they can begin to work. A survey of licensure requirements, measuring burdens for 102 lower-income occupations, found that, on average, licensing laws require nearly a year of education and experience.81
Some occupations have unusually onerous requirements, and some of the comparisons seem anomalous. Becoming an interior designer takes an average of 2,190 days, which is higher than the number required to be a public school preschool teacher (2,050 days).82 Other professions with onerous requirements include carpenter/cabinet maker contractor (licensed in thirty states with an average of 368 days); shampooer (thirty-seven states; 248 days); and tree trimmer (seven states; 574 days).83
Some states also require a great deal of paperwork. For cosmetology alone, the South Dakota Cosmetology Commission’s website lists sixteen different forms, though some of them pertain only to specific requests and accommodations.84
The problem of long processing times for occupational licenses frequently arises in the context of interstate labor migration, when workers moving from one state to another state try to obtain a credential in their new home state to continue working in thier profession. This problem affects military spouses in particular, who often need to move around the country. In 2018, the US Department of Homeland Security and the US Department of Defense compiled a table of processing times for occupational licenses in various professions when crossing state lines.85 The processing time is often a matter of months, and in some states it can be close to a year.
Many students want to study in the United States, and when they succeed, the benefits are substantial—not only for them, but for the United States itself. Any particular estimate of those benefits will be based on contestable assumptions, but according to one study, international students contributed over $41 billion to the US economy during the 2018–2019 academic year and supported almost 460,000 jobs.86 Competition for the global international student population can be intense, and many countries have worked hard to increase their appeal as study destinations. China (9 percent of total international students in 2019), Canada (8 percent), and Australia (5 percent) all have significantly grown their market share, while the United States dropped from 28 percent of global international students in 2001 to 21 percent as of 2019.87
Let’s bracket large-scale policies, produced, for example, by the COVID-19 pandemic and by the policies of the Trump administration, which has not been enthusiastic about international students. Why did that number decline over a relatively long period? One study finds that the sludge-filled visa application process is a principal contributor.88 In a 2015 poll of prospective international students, the United States was ranked the very worst on visa procedures, with over 50 percent of respondents agreeing that it had “difficult or complex visa procedures.”89
To understand the problem, it is useful to identify the three primary visa classes through which foreign students may legally study in the United States: (1) the F visa, (2) the M visa, and (3) the J visa. The F and the M visa programs are managed by the Student and Exchange Visitor Program (SEVP), which is part of the Department of Homeland Security (DHS), while the J visa program is managed by the Department of State (DOS).90
Of these, the most important is the F visa class, intended for “nonimmigrants whose primary purpose is to complete an academic course of study at an SEVP-certified school or program.” In terms of sheer numbers, it is the most popular by far, with almost 390,000 new visas issued in 201991 and more than 1.55 million students with active status in 2018 (in combination with M visa students). The M-1 visa is similar to the F-1, with one key difference: the M-1 applies to students enrolled in a vocational course of study, rather than an academic course of study. Only 9,227 M-1 visas were issued in 2019, and 291 visas were issued for the student’s dependents under the M-2 classification.92 The J-1 visa includes people who are participating in an exchange visitor program meant to promote cultural exchange. While this category includes many students and scholars, it is a broader visa class, which also covers, for example, au pairs, interns, and government visitors. Including the J-2 (for dependents of J-1 visa holders), there were just over 390,000 J visas issued in 2019.93
The main source of sludge in the application process is the complexity and sheer number of forms and administrative burdens. For example, a normal F-1 visa application process involves at least the following steps:94
Students must also pay a nonrefundable application fee of $160 (a different fee from the previously mentioned SEVIS fee).97 Payment of this fee is sometimes not possible through a credit card online, and methods vary widely across countries (in Singapore, for example, payments are made through the local post office).98
Many international students find it challenging to comply with the specifications of the DS-160 photo. Because the requirements are quite detailed and extensive, and also differ from normal passport pictures, applicants may be required to visit an embassy-recommended professional studio to take the picture, which costs additional time and money.99
5. Once a student has submitted a DS-160, she may then schedule an interview at a US embassy or consulate. That may take up to several weeks. Visiting times at the US embassy vary widely and can take from a few hours to almost an entire day (the embassy in London, for example, estimates an average of two to three hours of waiting time).100 The visit itself will also involve a security screening and the taking of the student’s fingerprints prior to the interview.101 Visitors are not allowed to carry their cell phones or other electronic devices.102 The interview itself usually takes only a few minutes and often focuses on the students’ ability to finance their stay in the United States and their commitment to return after their studies to their home country.
After the completion of the interview, the applicant is usually informed immediately about whether the visa has been granted or denied.103 Once the visa has been denied, there is no recourse, unless new information is presented and the procedure is restarted. It is possible, however, that the responsible officer will determine that the application warrants “further administrative processing,” which usually occurs when the applicant appears in certain databases (e.g., prior visa overstays, security risks). This may require the student to submit additional information and can extend the visa processing time significantly. In 2019, the allowed time for administrative processing was extended from 60 days to 180 days.104
In sum: The normal application process involves at least four different forms, two separate payments totaling $510 (with different payment rules and restrictions), and at least one visit to a US embassy, which is typically located only in large urban centers. The entire process takes at least one to two months under normal conditions. There is also a significant chance that a visa will be rejected. In 2019, for example, more than 25 percent of F-1 visa applications were rejected.105
This summary of the sludge encountered by international students in the United States is not exhaustive. Nor is it meant to suggest that the relevant burdens should be reduced by 75 percent, or 50 percent, or 25 percent, or even 10 percent. Most of them serve legitimate purposes; some of them are undoubtedly designed to discourage people from trying. But the question remains: How many of them could survive some kind of cost-benefit test?
We have seen that sludge raises serious free speech issues. It can also endanger religious liberty, protection of private property, and rights in the criminal justice system. I focus on two issues here because of their contemporary relevance and complexity: abortion and voting. One reason for their complexity is that with respect to those issues, reasonable people can take different views about sludge. This is true in the context of abortion because of moral disagreement. In the context of voting rights, there remain unsettled questions about how much sludge is necessary to ensure against voter fraud.
Under current law, states are allowed to regulate the abortion right so long as their regulations do not impose an “undue burden.”106 Because that standard has a degree of vagueness, it can be taken to invite states to take steps to discourage abortion by imposing sludge. They have enthusiastically taken up the invitation.107 For example, states have required pregnant women to engage in mandatory counseling, which includes descriptions not only of the procedure but also of fetal pain. They have required women to take and see an ultrasound, to make multiple visits to clinics, and to undergo significant waiting periods.108 Some states impose a waiting period of seventy-two hours after a woman has seen her doctor. Some states require women to hear a mandatory “script,” designed to discourage abortion.109 These requirements impose evident costs in terms of time, necessary learning, and feelings of stigma and perhaps humiliation.
Imposition of sludge is now a preferred method for discouraging exercise of the abortion right. As noted, whether that is a good or bad thing depends on one’s moral commitments. We might be dealing with reasonable, deliberation-promoting nudging in a domain in which the stakes are incalculably large; we might be dealing with excessive sludge in a domain in which the fundamental rights of women are at risk. But there is no question that sludge is being imposed.
To capture the qualitatively diverse costs, Herd and Moynihan offer an extensive quotation from a thirty-five-year-old woman, describing her experience of navigating administrative burdens in Wisconsin. Here is an excerpt:
I am shaken. I am embarrassed. I am tired of waiting. I am now called into a room. I can bring Hubby this time. We are told to watch a video, again required by state law. The video talks about adoption, foster parenthood, the dangers of abortion, my rights. It drags on. I feel like a small child. Husband looks concerned and helpless. I sign a form indicating my understanding of the information presented on the video. We wait. A nurse finally comes back in. Time to go back to the waiting room. We’ll call you in a short while.110
The sludge has had an impact. According to one study, sludge increases the cost of abortion by 19 percent and decreases the number of abortions by between 13 and 15 percent.111 One consequence appears to be an increase in the incidence of self-administered abortions.112 But for defenders of sludge in this context, there is a counterpoint. Consider the words of a woman who received an ultrasound as a donation from the Knights of Columbus, a Catholic fraternal service order:
The only way I can describe it is that it changed me in the blink of an eye … The moment I saw my child on the big screen in front of me, I knew I was going to be a mom. It did not matter what I had thought before—all that mattered was loving my child and caring about her safety. I saw her little feet and little arms. I heard her heartbeat as I watched her in front of me. I still have the pictures of the ultrasound that were given to me that day—the day that changed my life forever.113
The Fifteenth Amendment to the US Constitution, forbidding denial of the vote “on account of race, color, or previous condition of servitude,” was ratified in 1870, but sludge has long been used to disenfranchise African Americans. For decades, literacy tests were a favorite instrument; they were eventually forbidden by the Voting Rights Act of 1965. In recent years, sludge has often been reduced, in the sense that voting is often more convenient and registration is generally easier.114 But sludge continues to exist, and in some states it is mounting. It is plainly being used as a political weapon, most prominently by Republican leaders seeking to impose sludge so as to increase their electoral prospects.115
Removing people from the rolls obviously creates sludge, because it forces people to take steps to reregister. At least one state permits people to be removed from the rolls for something as simple as not voting in the previous election. In 2017, Georgia’s year-end total of voters purged from the rolls reached 660,000116—over 6 percent of Georgia’s population (not considering the smaller number eligible to vote). Many states routinely “clean up” voter rolls to ensure that people who may have become ineligible to vote (e.g., by moving, by receiving a disenfranchising criminal conviction, or by death) are not permitted to remain on the rolls. That is perfectly legitimate, of course, but it may well result in numerous mistakes, which means that voters will have to face sludge. People may show up to vote only to be turned away or forced to file a provisional ballot.
According to a report from the Brennan Center, voter roll purges increased 33 percent nationwide from 2008 to 2018.117 Some states are purging people who have not voted for a specified number of years or responded to a notice, thus requiring them to register again.118 The New York City Board of Elections purged two hundred thousand voters in 2014 and 2015 for failing to update their forms, failing to vote since 2008, or moving (according to the National Change of Address database).119 City officials notified voters of their removal but gave voters only fourteen days to respond before being automatically removed.120
Some states require state-issued photo identification.121 That form of sludge might not seem particularly onerous, but according to some estimates, about 11 percent of Americans do not have a state-issued photo identification (including about 25 percent of African Americans).122 Many college students may be effectively disenfranchised by voter ID laws. In North Carolina, student IDs, even from state institutions, were excluded from the list of acceptable ID forms until a court struck down the relevant law and new legislation was passed.123
Some states have also increased residency requirements and required proof of citizenship.124 With respect to the right to vote, administrative burdens of multiple kinds are working to disenfranchise African Americans, the elderly, and people of low income.125 Some of the most insidious forms of sludge involve dramatically reduced polling places and exceedingly long lines, sometimes requiring people to wait for up to seven hours before registering their vote. In some places, that burden is intentional. It is an effort to prevent particular people from voting.
How shall we put it? That is a disgrace. Many reforms could help. We have seen that automatic registration is an excellent idea. Voting by mail is another—especially, but not only, during or after a pandemic. A paid day off on election day is yet another.126 Voting should be sludge-free.
1. See Pamela Herd & Donald P. Moynihan, Administrative Burden: Policymaking by Other Means (2019).
2. See Wendy Wagner, Incomprehensible! (2019), for valuable discussion.
3. Herd & Moynihan, supra note 1, at 215.
4. Id. at 233.
5. Id. at 215.
6. Id. at 219; 225–226.
7. Id. at 227.
8. Id. at 233.
9. Id. at 237.
10. Id.
11. See Katherine Baicker, William J. Congdon & Sendhil Mullainathan, Health Insurance Coverage and Take-Up: Lessons from Behavioral Economics, 90 Milbank Q. 107 (2012).
12. See Ben Sommers et al., US Dep’t Health & Hum. Services: Office of the Assistant Secretary for Planning and Evaluation, ASPE Issue Brief: Understanding Participation Rates in Medicaid: Implications for the Affordable Care Act (2012), https://aspe.hhs.gov/basic-report/understanding-participation-rates-medicaid-implications-affordable-care-act. See Baicker, Congdon & Mullainathan, supra note 11.
13. See id.
14. For a general discussion, see Making Work Pay (Bruce Meyer & Douglas Holtz-Eakin eds. 2002).
15. Herd & Moynihan, supra note 1, at 191.
16. Id. at 196.
17. Id. at 194.
18. Id. at 196.
19. Surprisingly, there appears to be no literature on automatic enrollment and the EITC. This area deserves sustained study.
20. Herd & Moynihan, supra note 1, at 213.
21. Policy Basics: The Supplemental Nutrition Assistance Program (SNAP), Ctr. on Budget & Policy Priorities (June 25, 2019), https://www.cbpp.org/research/food-assistance/policy-basics-the-supplemental-nutrition-assistance-program-snap.
22. SNAP Data Tables, USDA (May 15, 2020), https://www.fns.usda.gov/pd/supplemental-nutrition-assistance-program-snap.
23. The Positive Effect of SNAP Benefits on Participants and Communities, Food Research & Action Ctr., https://frac.org/programs/supplemental-nutrition-assistance-program-snap/positive-effect-snap-benefits-participants-communities (last accessed June 15, 2020).
24. Id. Some people are categorically excluded from SNAP benefits, including students and undocumented immigrants.
25. David Ribar, How to Improve Participation in Social Assistance Programs, 104 IZA World of Lab., Dec. 2014, at 3.
26. Karen Cunnyngham, USDA, Reaching Those in Need: Estimates of State Supplemental Nutrition Assistance Program Participation Rates in 2016 1 (2019); Mark Prell et al., USDA, Annual and Monthly SNAP Participation Rates 2 (2015).
27. Janet M. Currie, The Invisible Safety Net 68–70 (2006).
28. Brian Stacy et al., USDA, Using a Policy Index To Capture Trends and Differences in State Administration of USDA’s Supplemental Nutrition Assistance Program 15 (2018).
29. Currie, supra note 27, at 68.
30. Id. at 68–69.
31. SNAP Online: A Review of State Government SNAP Website, Ctr. on Budget & Policy Priorities (Jan. 27, 2020), https://www.cbpp.org/research/food-assistance/snap-online-a-review-of-state-government-snap-websites.
32. Hiram Lopez-Ladin, AARP Foundation, SNAP Access Barriers Faced by Low Income 50–59 Year Olds 15 (2013).
33. Id. at 5.
34. Tatiana Homonoff & Jason Somerville, Program Recertification Costs: Evidence from SNAP (NBER, Working Paper No. 27311, 2020).
35. Id.
36. Id. at 3.
37. Id. at 4.
38. Id. at 5.
39. C. A. Pinard et al., What Factors Influence Snap Participation? Literature Reflecting Enrollment in Food Assistance Programs from a Social and Behavioral Science Perspective, 12 J. Hunger & Envt’l Nutrition 151, 157 (2017).
40. Policy Basics: Temporary Assistance for Needy Families, Ctr. on Budget & Policy Priorities (Feb. 6, 2020), https://www.cbpp.org/research/family-income-support/temporary-assistance-for-needy-families.
41. Linda Giannarelli, Urban Inst., What Was the TANF Participation Rate in 2016? 1 (2019).
42. Ife Floyd, Cash Assistance Should Reach Millions More Families, Ctr. on Budget & Policy Priorities (Mar. 4, 2020), https://www.cbpp.org/research/family-income-support/cash-assistance-should-reach-millions-more-families.
43. Id.
44. Id.
45. States have significant discretion to determine TANF eligibility and the application process. Policy Basics: Temporary Assistance for Needy Families, supra note 40, at 3. The District of Columbia, for example, requires an application, an in-person appointment, and may require an applicant to bring documentation of income, assets, DC residency, her social security number, medical examination reports, immigration information, birth certificates, and statements from non-relatives. See TANF for District Families, DC Dep’t of Human Servs., https://dhs.dc.gov/service/tanf-district-families (last accessed Aug. 18, 2020); Documents You May Need for Your Interview, DC Dep’t of Human Servs., https://dhs.dc.gov/service/documents-you-may-need-your-interview (last accessed Aug. 18, 2020).
46. Heather Hahn et al., Urban Inst., Work Requirements in Social Safety Net Programs (2017); Pamela A. Holcomb et al., US Dep’t of Health & Human Servs., The Application Process for TANF, Food Stamps, Medicaid and SCHIP 3–9 (2003).
47. Holcomb et al., supra note 46, at v.
48. Barak Y. Orbach, Unwelcome Benefits: Why Welfare Beneficiaries Reject Government Aid, 24 Law & Ineq. 108, 120–123 (2006).
49. See Online Services for Key Low-Income Benefit Programs, Ctr. on Budget & Policy Priorities (July 29, 2016), https://www.cbpp.org/research/online-services-for-key-low-income-benefit-programs.
50. Id.
51. See Jennifer Stuber & Karl Kronebusch, Stigma and Other Determinants of Participation in TANF and Medicaid, J. 23 Pol’y Analysis & Mgmt. 509 (2004).
52. Id.
53. Orbach, supra note 48, at 129–130.
54. Id.
55. Sheila R. Yedlewski, Urban Inst., Left Behind or Staying Away? Eligible Parents Who Remain Off TANF 5 (2002).
56. Id.
57. Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111–148, 124 Stat. 119 (codified as amended in scattered sections of 42 U.S.C. § 18001 (2012)).
58. Herd & Moynihan, supra note 1, at 98.
59. Id. at 99.
60. Id. at 118.
61. See Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2021; Notice Requirement for Non-Federal Governmental Plans, 85 Fed. Reg. 7088, 7119–7120 (Feb. 6, 2020).
62. Sabotage Watch: Tracking Efforts to Undermine the ACA, Ctr. on Budget & Policy Priorities (June 12, 2020), https://www.cbpp.org/sabotage-watch-tracking-efforts-to-undermine-the-aca.
63. See Alex Olgin, Reductions in Federal Funding for Health Law Navigators Cut Unevenly, Nat’l Pub. Radio (Oct. 26, 2017, 12:54 PM), https://www.npr.org/sections/health-shots/2017/10/26/559574743/money-for-health-law-navigators-slashed-except-where-it-s-not.
64. Press Release, CMS Announcement on ACA Navigator Program and Promotion for Upcoming Open Enrollment, CMS.gov (Aug. 31, 2017), https://www.cms.gov/newsroom/press-releases/cms-announcement-aca-navigator-program-and-promotion-upcoming-open-enrollment.
65. See Olgin, supra note 63.
66. Amy Goldstein, Federal Notices about ACA Enrollment Season Get Cut in Number and Messaging, Wash. Post (Nov. 1, 2017), https://www.washingtonpost.com/national/health-science/federal-notices-about-aca-enrollment-season-get-cut-in-number-and-messaging/2017/11/01/e0eeb872-bf16-11e7-97d9-bdab5a0ab381_story.html.
67. Status of State Action on the Medicaid Expansion Decision, Kaiser Family Found. (May 29, 2020), https://www.kff.org/about-us/.
68. Medicaid Expansion & What It Means for You, HealthCare.gov, https://www.healthcare.gov/medicaid-chip/medicaid-expansion-and-you/ (last visited June 14, 2020).
69. Selena Simmons-Duffin, Trump Is Trying Hard to Thwart Obamacare. How’s That Going?, Nat’l Pub. Radio (Oct. 14, 2019, 3:54 PM), https://www.npr.org/sections/health-shots/2019/10/14/768731628/trump-is-trying-hard-to-thwart-obamacare-hows-that-going.
70. Ian Hill & Emily Burroughs, Urban Inst., Lessons from Launching Medicaid Work Requirements in Arkansas 1 (2019).
71. Id. at 6.
72. Id. at 7.
73. Id. at 15.
74. Id. at 17.
75. Social Security Amendments of 1965, Pub. L. 89–97, 79 Stat. 286 (codified as amended in scattered sections at 25, 26, 29 & 42 U.S.C. (2012)). Medicare is understood in four parts: hospital insurance in Part A, 42 U.S.C. § 1395c; supplemental medical insurance in Part B, 42 U.S.C. § 1395j; managed care in Part C, 42 U.S.C. § 1395w-21; and drug benefits in Part D, 42 U.S.C. § 1395w-101.
76. Herd & Moynihan, supra note 1, at 134–135.
77. Id. at 134.
78. See Saurabh Bhargava et al., Choose to Lose: Health Plan Choices From a Menu with Dominated Options, 132 Q.J. Econ. 1319, 1322 (2017) (noting that in both experimental and field studies, individuals did not select the most financially efficient Medicare plans).
79. Herd & Moynihan, supra note 1, at 138.
80. Why Occupational Licensing Reform Is Needed, Charles Koch Inst., https://www.charleskochinstitute.org/issue-areas/stopping-corporate-welfare/why-occupational-licensing-reform-is-needed/ (last visited June 9, 2020).
81. Dick M. Carpenter II et al., Inst. for Just., License to Work: A National Study of Burdens from Occupational Licensing (2d ed. 2017), https://ij.org/wp-content/themes/ijorg/images/ltw2/License_to_Work_2nd_Edition.pdf.
82. See id. at 16.
83. See id.
84. See Forms, S.D. Dep’t Labor & Reg.: S.D. Cosmetology Comm’n, https://dlr.sd.gov/cosmetology/forms.aspx (last visited June 11, 2020).
85. See US Dep’t of Homeland Sec. & US Dep’t of Def., C-FF91556, Report on Barriers to Portability of Occupational Licenses Between States, Appendix C (2018), https://download.militaryonesource.mil/12038/MOS/Reports/barriers-to-portability-of-occupational-licenses-between-states.pdf.
86. NAFSA: Ass’n of Int’l Educators, Economic Value Statistics (2019), https://www.nafsa.org/policy-and-advocacy/policy-resources/nafsa-international-student-economic-value-tool-v2.
87. Id.
88. Id.
89. Institute of International Education, What International Students Think About U.S. Higher Education 6 (2015).
90. US Immigration & Customs Enf’t, SEVIS by the Numbers: Annual Report on International Student Trends 1 (2018).
91. US Dep’t of State, Non-Immigrant Visa Statistics FY 2019 NIV Detail Table, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html.
92. Id.
93. Id.
94. Harvard Int’l Office, Applying for Your Visa, https://hio.harvard.edu/applying-your-visa.
95. US Immigration & Customs Enf’t, I-901 SEVIS Fee Frequently Asked Questions, https://www.ice.gov/sevis/i901/faq.
96. US Dep’t of State, DS-160: Online Nonimmigrant Visa Application, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/forms/ds-160-online-nonimmigrant-visa-application.html (noting that the information on government websites changes over time, and the text refers to the provisions of 2020).
97. US Dep’t of State, Student Visa, https://travel.state.gov/content/travel/en/us-visas/study/student-visa.html.
98. US Embassy Singapore, Bank and Payment Options/Pay My Visa Fee, https://www.ustraveldocs.com/sg/sg-niv-paymentinfo.asp.
99. For example, the picture must be square, the head of the individual in the picture must be between 1 inch and 1⅜ inches from the chin to the top of the head, the photo must have been taken within the last six months, and it must have been taken in full-face view. US Dep’t of State, Photo Requirements, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/photos.html. See, for example, US Embassy Singapore, Photo Studios, https://sg.usembassy.gov/u-s-citizen-services/passports/photo-requirements/photo-studios/.
100. US Embassy & Consulates in the United Kingdom, The Interview, https://uk.usembassy.gov/visas/tourism-visitor/the-interview/.
101. Id.
102. Id.
103. US Dep’t of State, Administrative Processing Information, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/administrative-processing-information.html.
104. Anemona Hartocollis, International Students Face Hurdles under Trump Administration Policy, NYT (Aug. 28, 2019), https://www.nytimes.com/2019/08/28/us/international-students-visa.html.
105. US Dep’t of State, Nonimmigrant Visa Statistics: FY2019 NIV Workload by Visa Category, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html.
106. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992).
107. See Herd & Moynihan, supra note 1, at 90–92; Kate L. Fetrow, Note, Taking Abortion Rights Seriously: Toward a Holistic Undue Burden Jurisprudence, 70 Stan. L. Rev. 319 (2018).
108. Herd & Moynihan, supra note 1, at 71.
109. For a valuable account of how things are happening on the grond, see Mara Buchbinder et al., “Prefacing the Script” as an Ethical Response to State-Mandated Abortion Counseling, 7 AJOB Empirical Bioethics 48 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4999071/.
110. Herd & Moynihan, supra note 1, at 78–79.
111. Id. at 82.
112. Id.
113. See How the Knights of Columbus Save Lives: 1,000 Ultrasound Machine Donations (2019), https://www.catholicnewsagency.com/news/how-the-knights-of-columbus-save-lives-1000-ultrasound-machine-donations-65312.
114. Herd & Moynihan, supra note 1, at 47.
115. Id. at 63–64 (noting the correlation between Republican states and voter ID laws and explaining the correlation with party policies).
116. Vann R. Newkirk II, The Georgia Governor’s Race Has Brought Voter Suppression into Full View, Atlantic (Nov. 6, 2018), https://www.theatlantic.com/politics/archive/2018/11/how-voter-suppression-actually-works/575035/.
117. Jonathan Brater et al., Brennan Center for Justice at the New York University School of Law, Purges: A Growing Threat to the Right to Vote 1 (2018).
118. See Herd & Moynihan, supra note 1, at 53.
119. Ella Nilsen, Why New York City Voter Rolls Were Missing Names Again, Explained, Vox (Sept. 13, 2018, 3:30 PM), https://www.vox.com/2018/9/13/17855254/new-york-city-voters-rolls-purges-missing-names-2018-midterms.
120. Brater et al., supra note 117, at 5–6.
121. See Voter Identification Requirements: Voter ID Laws, Nat’l Conference of State Legislatures, http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx (https://perma.cc/QF6Z-VAKK) (noting that thirty-four states have laws requesting or requiring voters to show some form of identification to vote, and seven of those require state-issued photo identification).
122. Denise Lieberman, Barriers to the Ballot Box: New Restrictions Underscore the Need for Voting Laws Enforcement, 39 Hum. Rts. 2, 3 (2012).
123. Rebekah Barber, The Long Fight over Using Student IDs to Vote in North Carolina, Facing South (Oct. 22, 2019), https://www.facingsouth.org/2019/10/long-fight-over-using-student-ids-vote-north-carolina.
124. See Herd & Moynihan, supra note 1, at 52.
125. Id. at 2.
126. Sendhil Mullainathan, For Racial Justice, Employees Need Paid Hours Off for Voting, NYT (June 12, 2020), https://www.nytimes.com/2020/06/12/business/for-racial-justice-employees-need-paid-hours-off-for-voting.html.