BY MATTHEW HUTCHINS
The electoral victory of President Barack Obama ‘91 in 2008 brought the inevitably bittersweet departure of many of the brightest stars at HLS for top posts in Washington, including Dean Elena Kagan ‘86, Prof. Cass Sunstein, Prof. Dan Meltzer ‘75, Prof. David Barron ‘94, and until recently, Prof. Jody Freeman LL.M. ‘91, S.J.D. ‘95. But after more than a year of service at the White House as Counselor for Energy and Climate Change, Prof. Freeman has returned to HLS to teach environmental and administrative law – and share her experience.
As part of the Dean’s Views from Washington Series, Prof. Freeman spoke on March 23rd about the excitement of being directly involved in shaping national policy and the complicated process of taking the White House agenda from the drawing board to the halls of Congress. She contrasted academia to government, saying that as a professor you have much greater freedom to choose your own projects and work within your specialty, but that you have very little influence over the course of policy, and she expressed satisfaction at getting a chance to roll up her sleeves and put her knowledge to work. “It’s not very often you get to go into government and do that thing you have been writing about for 15 years,” she said.
Within the White House, Freeman said that reality is not so different from what you might see on television. “I can’t tell you the number of times I turned to somebody and said ‘This is just like the West Wing!'” she exclaimed. Freeman had no shortage of high pressure situations in the course of advising Carol Browner, director of the White House’s Office of Energy and Climate Change Policy, and helping to coordinate executive action on climate change, draft historic greenhouse gas legislation, and work to build the legislative coalition needed to bring a climate change bill to a vote in Congress.
Prof. Freeman praised the Obama administration for the many things like healthcare reform it has already accomplished and for the bold legislative objectives it is still working to fulfill. During her time at the White House, major environmental initiatives included the historic infrastructure and renewable energy investments of the Recovery Act, the toughest fuel efficiency standards ever, the first greenhouse emissions standards for cars and trucks, and a successful House vote on the climate change bill. “The administration has laid the groundwork… for a transition to a clean energy economy,” she asserted.
Freeman also expressed strong support for the Copenhagan agreement. “I would describe it as wresting victory from the jaws of defeat through the President’s personal intervention.” She called it, “the first ever international agreement from both developing economies and developed economies to all commit to reducing greenhouse gas emissions and for the first time to agree to a target of no more than two degrees of temperature change as a guide to mitigation.”
Speaking from her experience as a White House insider, Freeman noted that lawyers play a critical part in the proper functioning of the government. When in a room with a consultant who is most concerned with the “theory of the case” and an economist who is searching for the “market failure that justifies intervention”, the lawyer’s role becomes one of identifying the institutional constraints to action. On some occasions, she admitted, this required a quick reminder that something might not be constitutional. “It’s really important to say no sometimes,” she observed. “It’s equally important to say YES when you can. I was in many a conversation, negotiation, or meeting in which what was really valuable was creative thinking about how you could get to yes.”
The lawyers that are in demand, Freeman said, are the ones who can restrain their impulse to say no, come up with creative solutions, negotiate and lead meetings effectively, and reach the desired outcome. Returning to academia, Freeman said that she will try to avoid regaling her students with too many war stories from Washington, but that she has learned some important lessons regarding the skills that are needed to be effective in government. The most important skill, from her perspective, is adaptability. But speed is also crucial, especially when the task at hand requires you to “get the information, distill it, put it in four bullets, and send it up the chain.” Government work also requires a wide range of writing skills, including not only legal and policy briefs, but also talking points, executive orders, and legislative language, skills that she noted are not prerequisites for teaching at Harvard Law School.
Freeman concluded by expressed some agreement with Dean Martha Minow’s sense that different agencies with claims to the same issue could prove obstacles to one another. She noted that there are long-standing turf battles in Washington between different committees in Congress, agencies with different priorities, and recalcitrant
career agency staffers who disagree with temporary appointees, as well as unpredictable exogenous factors as random as the weather, all of which can influence the likelihood of progress being made on legislation. But she also expressed hope that despite the intricacies of power structures, legal disputes, and political maneuvering,
magic can happen and agreements are possible. “It was like six dimensional chess, and when it all came together,” she said of her proudest achievement while working at the White House. “It was one of those magic moments.”