Philip K. Howard: Public-employee unions, unlike trade unions, corrupt democracy

Chicago teachers marching during a demonstration on Oct. 14, 2019

Massachusetts state militia enter Boston’s Scollay Square (RIP) to restore order during the city’s police union strike in 1919, which was broken, in large part by the rigorous actions by Gov. (and later Vice President and then President) Calvin Coolidge. The strike left a negative opinion amongst many citizens about public-employee unions for many years. There was much crime and other disorder during the strike. Coolidge famously said during the strike:

“There is no right to strike against the public safety by anyone, anywhere, any time. ... I am equally determined to defend the sovereignty of Massachusetts and to maintain the authority and jurisdiction over her public officers where it has been placed by the Constitution and laws of her people."

In a runoff election for mayor, Chicago voters on April 4 narrowly chose former teacher Brandon Johnson over former schools CEO Paul Vallas. Raising eyebrows was the funding of Johnson’s campaign: Over 90 percent came from teachers unions and other public-employee unions. Vallas had the endorsement of the police union, but his funding was more diverse, including business leaders and industrial unions. Just looking at the money, the race came down to this: Public employees vs. everyone else plus cops.

What is wrong with this picture? The new mayor is supposed to manage Chicago for all the citizens, not to benefit public employees. Chicago is not in good shape. In 37 of its schools, not one student is proficient in reading or math. Its transit system is stuck with schedules that serve no one at great expense. The crime rate in Chicago is among the highest in the country. But no recent Chicago mayor has been able to fix these and other endemic problems because the public unions have collective bargaining powers that give them a veto on how the city is run. Frustrated by the inability to get teachers back to the classroom during COVID, Chicago Mayor Lori Lightfoot observed that the teachers union wanted “to take over not only Chicago Public Schools, but take over running the city government.”

This is not just a Chicago problem. Los Angeles teachers walked out of class rooms last month supposedly to support striking service personnel, but Los Angeles lacks the resources to help the service employees because of the indebted inefficiencies in the teachers union contract.

American government has a fatal flaw hiding in plain sight. Public employee unions in most states have a stranglehold on public operations. Voters elect governors and mayors who have been disempowered from fixing lousy schools, firing rogue cops, or eliminating notorious inefficiencies.

Look at almost any public scandal in recent years—failing schools in Baltimore, police killings in Minneapolis and Memphis—and you will find public supervisors who, under union controls, have lost basic managerial tools. Democracy is supposed to be a process of accountability. But there’s near-zero accountability in American government—between .01 and .02 percent in most jurisdictions. Two out of 95,000 teachers in Illinois were dismissed annually for poor performance over an 18-year study period. In the decade prior to the killing of George Floyd, of the 2,600 police complaints in Minneapolis only 12 merited discipline, of which the most severe was a 40-hour suspension.

No wonder democracy is working so badly. Elected leaders come and go, but public unions just say no. How did public employee unions get this power?

Rewinding the Clock

Until the 1960s, public employees were organized like lawyers, doctors and other voluntary professional associations. They had no legal right to compel government to enter into contracts. Many already enjoyed civil service protections, and government work was generally sleepy, not ruthless. But public employees had become a huge voting bloc, and leaders of public employee associations wanted power over how government was run.

Until then, the idea of public employees bargaining against government was inconceivable. FDR, a strong supporter of trade unions, firmly rejected government bargaining: “The process of collective bargaining…cannot be transplanted into the public service.” Early labor leader Samuel Gompers refused to let police join the industrial union because, having sworn to serve the public, police would have a conflict of interest. As late as the 1950s, union leader George Meany stated unequivocally that it is “impossible to bargain collectively with the Government.”

But the strong tide of the 1960s rights revolution provided ample cover for government unions to get similar statutory powers as industrial unions. No one conceived back then that these powers would make government unmanageable. It was just considered a matter of “elementary justice” to treat them the same.

Government bargaining, however, is radically different from trade union bargaining:

• A trade union must honor efficiency, or else the jobs are lost when the business moves out of town or fails. Government can’t go out of business or move, so public employee bargaining is aimed at creating deliberate inefficiencies to foster more jobs.Multi-hundred-page contracts that are designed for featherbedding and overtime excesses. Taxpayers must foot the bill.

• Trade union bargaining is limited to dividing the pie of profit between capital and labor. There is no profit in government, so the scope of government bargaining has no defined limits. Again, the taxpayers must pay.

• In trade union bargaining, it would be unlawful for management to collude with a complicit workers group. In government bargaining, overt collusion is how the game is played. In exchange for huge union campaign support, politicians agree to give unions control over public operations and pensions. As unions like to say, “we elect our own bosses.” At a rally with public unions, New Jersey’s then-Governor Jon Corzine called out that “We will fight for a fair contract!” Who was he going to fight? Collective bargaining with government unions is not a real negotiation. It’s a pay-off.

For fifty years, government union controls have gotten ever-tighter. Unlike all other interest groups, government unions have a binding contractual veto over how government operates, and are first in line for public resources. They keep it that way with preemptive political force. Stanford political scientist Terry Moe found that in 36 states teachers unions contributed more than all business groups combined.

The Disempowerment of Elected Executives

Newly-elected governors and mayors in most states quickly discover that they have no managerial control over schools, police, and other government operations. If an elected executive has the backbone to try to buck the union, and restore managerial powers when an agreement comes up for renegotiation, the executive in many states will find that unelected arbitrators have the final say.

Near-zero accountability makes its practically impossible to transform a lousy school, or an abusive police culture, because the supervisor can’t enforce good values and standards. No accountability also removes the mutual trust needed for any healthy organization. Why try hard, or go the extra mile, when others just go through the motions? The absence of accountability is like releasing a nerve gas into the agency or school.

Rigid work rules guarantee massive inefficiency. Basic services such as trash collection, and road and transit maintenance, cost two to three times what it would cost in the private sector. Need someone to help out or fill in? Sorry, not permitted. Need teachers to do remote teaching during the pandemic? There’s nothing about that in the agreement, so it must be negotiated.

No public purpose is served by union controls. Nor do union controls make government an attractive employer. Good candidates are repelled by toxic public cultures without energy or pride. Union controls serve only to transfer governing authority to union officials, who exercise that authority mainly to pad public employment and insulate government workers from supervisory judgments.

Public unions have turned public operations into a permanent spoils system: Unions have control over public operations and have insulated public employees from accountability, no matter how poorly they perform. That’s why democratically-elected leaders almost never fix what’s broken.\

All government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters. Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of government activities. This obligation is paramount. Since their own services have to do with the functioning of the government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of government by those who have sworn to support it, is unthinkable and intolerable.

Philip K. Howard, a New York-based lawyer, writer and civic leader, is author most recently of Not Accountable: Rethinking the Constitutionality of Public Employee Unions (Rodin Books, 2023). He is chairman of Common Good (commongood.org), a legal-and-regulatory-reform organization.

Read here Franklin Roosevelt’s views on public-employee unions.

Philip K. Howard: Our governing processes have become paralytic, and what to do about it.

The Bayonne Bridge, where an urgently needed improvement has been blocked by inane regulatory red tape.

Crook Point Bascule Bridge (1908), once connecting Providence and East Providence, R.I. It’s been stuck in upright position since 1976.

— Photo by Matthew Ward

Governing is not a process of perfection. Like other human activities, governing involves tradeoffs and trial and error. One of the most important tradeoffs involves timing. Delay in governing often means failure. Nowhere is this more true than with environmental reviews for infrastructure. Every year of delay for new power lines, modernized ports, congestion pricing for city traffic and road bottlenecks means more pollution and inefficiency.

New York Times columnist Ezra Klein has awakened liberal readers to the reality, hiding in plain sight, that governing processes are paralytic: “The problem isn’t government. It’s our government. … It has been made inefficient.”

The other week columnist George Will asked whether America “can do big things again.” Citing our work, and the absurd 20,000-page review for raising the roadway of the Bayonne Bridge, which connects Bayonne, N.J., with New York City’s Staten Island, to permit new post-panamax ships into Newark Harbor, Will calls out “the progressive aspiration to reduce government to the mechanical implementation of an ever-thickening web of regulations that leaves no room...for judgment.” American Enterprise Institute scholar and Washington Examiner columnist Michael Barone, also citing our work, the other day called for a rebooting of government to “sweep out the ossified cobwebs.”

The recent $1.2 trillion federal infrastructure law contains tools to streamline permitting, including presumptive 200-page limits on environmental reviews and two-year processes that we championed. But actually giving permits requires officials to use their judgment about priorities and tradeoffs, not to overturn every pebble. That may be a problem in current bureaucratic culture. In a letter to the editor of The Washington Post, an environmental official objects to my suggestion that raising the roadway of the Bayonne Bridge using existing foundations “involved no serious environmental impact.” He asserts that “bringing larger, more polluting ships and increased cargo” to the port “would result in increased diesel pollution from both the ships and the trucks transporting the cargo.”

Actually, the new larger ships are much cleaner, pollution-wise and burn much less diesel fuel per container. That’s a reason they’re more efficient. Increasing the capacity of the Newark port will indeed result in more truck traffic, but those containers have to come in somewhere.

You start to see the problem. It’s impossible to talk about environmental impact in the abstract. What’s needed is a governing culture that can make judgments about practical tradeoffs.

• In a piece for Fortune on efforts to protect kids online, Jonathan Haidt and Beeban Kidron cite my work on the benefits of a principles-based approach to writing laws.

• Julia Steiny in the Providence Journal cites my work in describing how Providence public schools are being crushed by law: “The system suffers from what author Philip Howard calls The Rule of Nobody. He says that the law operates ‘not as a framework that enhances free choice but as an instruction manual that replaces free choice.’”
  

• For the American Spectator, E. Donald Elliott provides a history of Common Good’s effort to bring about infrastructure permitting reform.

  Philip. K. Howard is a New York-based lawyer, civic and cultural leader, author and photographer. He’s chairman of the legal- and regulatory-reform organization Common Good (commongood.org) and the author of, among other books, The Death of Common Sense and The Rule of Nobody.

Philip K. Howard: How to fight back against the forces that are tearing apart America: End the ‘vetocracy’

Trump supporters crowding the steps of the Capitol on Jan. 6, 2021 as they prepare to force their way into it to try to overturn the election won by Joe Biden.

— Photo by TapTheForwardAssist 

NEW YORK

What can we do about our country? That’s the question I hear most often. Washington is mired in a kind of trench warfare, with no prospects of forward movement. And Americans today can be divided into two camps: discouraged or angry.

Americans are retreating into warring identity groups as extremists demand absolutist solutions to defeat the other side. It’s nighttime in America.

Yet, Americans still share basic values of self-reliance, tolerance and practicality, surveys show. Put Americans in a crisis, and unfailingly they put themselves on the line to help their fellow citizens, as essential workers did during the COVID-19 lockdowns.

Do we really hate each other? I don’t think so. We’re being forced apart by organized forces that profit from polarizing the country.

Extremists have the stage, and are relishing their new power to cow reasonable people into unreasonable positions — whether to deny the results of elections or benefits of vaccines, or to demand that most Americans wear hair shirts because of the sins of their ancestors.

Political insiders are manipulating extremism to their own goals. Political parties no longer compete by accomplishment but by stoking fears that the other side is worse.

The bottom line: Washington will not pull America back from the extremist precipice.

New leaders are obviously needed. But new leaders are not sufficient. Remember that Barack Obama promised “change we can believe in.” When that didn’t work out, frustrated voters (albeit with almost 3 million fewer votes than Hilary Clinton got) elected his polar opposite, Donald Trump, who promised to “drain the swamp.” Nothing much changed except more frustration, leading to greater extremism.

A new governing vision is needed – one that appeals to common interests while also responding to our frustrations. To talk polarized Americans off the precipice, we must understand how we got to the edge of this cliff.

The root cause of extremism, throughout history, is often a sense of powerlessness. Humans have an innate need for self-determination and opportunity. Can you do and say what you think makes sense? If not, sooner or later, you will want to break out. The Tea Party, Occupy Wall Street, Black Lives Matter, Stop the Steal: All these recent movements are ignited by a sense of powerlessness.

Government controls decision-making

What Obama and Trump failed to comprehend is this: The operating philosophy of modern government does not honor the role of human judgment in social activities. Instead of providing an open framework of goals and principles, activated by people taking responsibility, government strives to supplant human agency altogether.

At every level of society, Americans have been disempowered from making the choices needed to move forward. The operating structures of modern society are versions of central planning – dictating exactly how to do everything.

Why do Americans feel powerless? Because they can’t make a difference, and neither can their elected officials.

A new governing vision is needed to address this powerlessness. What I propose is to restore the human responsibility model that the Framers envisioned. As James Madison put it, giving responsibility to “citizens, whose wisdom may best discern the true interest of their country.”

Law should set goals and boundaries, but leave implementation to responsible people. Our protection from bad choices is accountability, not mindless compliance. "No man is a warmer advocate for proper restraints," George Washington wrote, but you cannot remove “the power of men to render essential services, because a possibility remains of their doing ill.”

Building an open governing framework activated by human responsibility is not difficult – it’s far easier to articulate goals than to dictate the details of implementation. Look at any organization or agency that works tolerably well, and you will find people focusing on the goals, not legalities.

But this new governing vision represents a radical departure from the status quo. No longer can bureaucrats avoid responsibility by being sticklers for rules. No longer can one lousy teacher or loud parent get what they want by demanding their rights. People in charge will actually be in charge, and will be empowered to act on their judgment. Other people will be empowered to make the judgments to hold them accountable.

America has become a 'vetocracy'

The federal government will never return willingly to a governing philosophy built on the foundation of human responsibility. All the detailed rules and red tape may prevent forward progress, but they empower insiders to block anything they don’t like. The power in Washington is the power of veto – a governing structure that political scientist Francis Fukuyama calls a “vetocracy.”

Change must come from the outside. The vision for change is to replace red tape with human responsibility. Let Americans use their judgment again. Instead of compliance, give people freedom to hold others accountable.

This is how a free society and democratic government is supposed to work. Instead of driving Americans into warring camps by trying to force one conception of the good, this vision can unite Americans by empowering them to shape their own conception of the good within broad legal boundaries.

Allow Americans to make things work again, and the darkness will soon turn into morning.

Philip K. Howard, a lawyer, author, New York civic and cultural leader and photographer, is founder and chairman of Common Good, a legal- and regulatory-reform nonprofit organization. His latest book is Try Common Sense: Replacing the Failed Ideologies of Right and Left. Mr. Howard is a friend and former colleague of New England Diary’s editor, Robert Whitcomb, who has worked on several Common Good projects in the past.

Philip K. Howard: Reframing Andrew Yang’s ideas for a new political party

Andrew Yang

Every so often, a citizen emerges to challenge the political establishment. Ross Perot’s 1992 presidential run drew on a public hunger for a new approach; he received 20 percent of the vote. In 2016 Donald Trump steamrolled traditional Republican candidates and changed the party’s face to his own. Andrew Yang is more a firecracker than a depth charge, but he has captured the public imagination with his refreshing candor and fearlessness.

Unlike Perot or Trump, Yang came from nowhere—no public reputation, no big money, no access to any part of the establishment. Yet, by force of his personality, Yang now has a pedestal in the political landscape. In his new book, Forward: Notes on the Future of Our Democracy, Yang plants the flag of a new political party. He argues that, though Americans are not as polarized as polls suggest, neither existing party will address the legitimate needs of the other side. He also says that the two parties are comfortable with their duopoly of failure—first you fail, then I fail—and therefore will not support disruptive electoral reforms such as ranked-choice voting.

Yang is not the first to suggest that our two political parties no longer represent most Americans. Frank DiStefano, in his recent essay in these pages, argued that the parties are on “a locked-in path to destruction and decline.” In my 2019 book, Try Common Sense, which Yang cites, I said that each party’s outmoded ideology precludes the overhauls needed to respond to public frustration.

It is no surprise that a plurality of voters now identifies as “independent” or as a member of a third party. But the electoral machinery makes it difficult for a would-be candidate to operate outside the two parties; and the primary system promotes extremists, not problem solvers.

Yang’s idea of a party is, initially, not one with its own candidates but a centrist movement that exercises influence on candidates from both parties. As DiStefano elaborates it, a movement that captures public imagination can eventually take over or supplant one of the parties. The challenge is to galvanize public support for this type of new overhaul movement in a political environment like today’s, which breeds deadlock, not solutions. While many Americans might be receptive to a new party, the current political shouting match has left them exhausted and cynical. There is a huge gulf today between wanting change and rolling up your sleeves to force change.

So, what does it take to engender the excitement needed for a new movement? Yang proposes a six-point platform for his Forward Party:

1. Ranked-choice voting, with open primaries: These arrangements would reduce the stranglehold of the two parties and defang the extremists.

2. Fact-based governing: The idea here is to evaluate programs objectively.

3. Human-centered capitalism: Yang wants to re-center business around employees and communities, not just owners.

4. Effective and modern government: Here Yang embraces the need to “fix the plumbing” of paralyzed government.

5. Universal Basic Income: Giving Americans $1,000 per month was Yang’s signature proposal in his presidential campaign—a proposal that was validated, he argues, by the Covid relief payments.

6. Grace and tolerance: Yang urges Americans to be more accepting of each other, not stay locked in a battle of identity politics.

By opening the door to a new party, Yang once again reveals solid leadership instincts. But a new movement requires a tougher, more focused platform. A list of centrist do-good reforms is unlikely to elicit the public passion needed to dislodge the current parties. Yang himself is a bold and disarming figure; his party must be as well. A new party needs a clarion call that can galvanize popular support—as the Progressive Movement did, for example, with its vision of public oversight of food and fair practices, or the New Deal with its idea of social safety nets. Successful movements also energize public passion by fingering villains, as the Tea Party and Occupy Wall Street did.

To get Americans out of their easy chairs, the new party must light a bonfire. Yet Yang’s platform is soporific, with no inspirational theme or evil targets. What’s the vision? Who are the enemies? Here is the way I would reframe Yang’s proposed Forward Party.

First, the clarion call for a new way of governing: Responsibility for America. Americans have lost their sense of self-determination. We should be re-empowered to make a difference. Revive individual responsibility at all levels of society. Replace mindless bureaucracy with accountability for results. Teachers should be free to do their best, with authority to maintain classroom discipline. Principals should be free to hold teachers accountable, and the same should hold true all the way up the chain of responsibility. Officials must be free to authorize action within a reasonable timeframe; and they, too, must be accountable up the chain of responsibility. Mayors and police chiefs should have authority to manage the police force and other departments, including authority to promote public employees who do their jobs and fire those who don’t.

Reviving human responsibility requires overhauling government’s operating systems, replacing thick rule books with simpler goals and principles managed by people who take responsibility for themselves and are accountable to others. This is not so hard: It is far easier to agree on goals than to bicker over endless details of implementation. Modern American government has become basically a bad form of central planning, tying Americans into knots of red tape. Ask any teacher or doctor. Restoring responsibility would empower officials and citizens to govern better and adapt to local needs.

Second, identify enemies and attack them. Powerful forces will resist a movement to revive responsibility. I see two main villains: public unions, which exist to block all accountability, and the political parties themselves, which have become organs of identity politics and special interests. It is impossible to fix broken government or revive a shared sense of national purpose without defeating these villains.

Public unions have made government unmanageable and must be outlawed. Public unions have preempted democratic governance. Citizens elect leaders to run the police force and schools, but these leaders have no authority to fulfill this responsibility. The Minneapolis mayor appointed the police chief; but under the police union’s collective-bargaining agreement, the mayor lacked authority to fire the rogue cop who killed George Floyd—or even to reassign the officer. Unlike private unions, which are dependent on the success of a private enterprise, public unions retain power even where they cause government to fail miserably.

Democracy is supposed to be a process of giving officials responsibility and holding them accountable. But public unions have broken the links: Today, there is zero accountability in the daily operations of American government. Without accountability, rote compliance with the thick rule books replaces individual responsibility for results. The bottom line today is a government bogged down in a bureaucratic jungle of dictates and entitlements. Nothing much works sensibly or fairly because no one is empowered to make things work.

As for political parties, they compete through failure, not achievement. Party leaders have basically given up on reforming government. Instead, they take turns in power pointing to the failures of the incumbent. In 2016 presidential candidate Donald Trump tapped into broad public frustrations with Washington. Trump’s erratic leadership opened a door through which Joe Biden entered, offering sanity. But Biden’s failures of execution in Afghanistan and on the Mexican border now empower Republicans to go on the attack and prepare for their own return.

This spiral of negative democratic competition is accelerated by the rise of extremism: Each side stokes fear of the extremists on the other (“Defund the police!” “Stop the steal!”). Actually fixing government is no longer the way the parties compete.

Each party will aggressively resist reforms that would revive responsibility. Public unions have a stranglehold on the Democratic Party. Identity groups on the left will resist any accommodation of other points of view, or what Andrew Yang calls “grace and tolerance.” Republicans have become a party of nihilism and offer no discernible governing vision. They will rail against any reform that empowers public officials, opens elections to moderate candidates, or imposes taxes for public projects.

The existing political parties are the problem, not the path to a solution. The new party envisioned by Yang must ultimately supplant one of them. The new party must ask its supporters to defeat the defenders of the status quo: They are not the agents but the enemies of a successful future. Generating public enthusiasm will require not a laundry basket of reforms but a spear with a sharp point. No matter which party is in charge, focus on its virtually unblemished recent record of failure.

America needs a new party. Its vision must be condensed into a new governing principle that resonates with American values and represents a clean break from bureaucratic paralysis—a principle like human responsibility, which can guide an overhaul of all levels of government.

The current state of American politics has squeezed all energy and hope out of our democracy. There’s no oxygen to serve as fuel for anyone who wants to do what is needed. Yang has cracked open a door, but we need a new vision to open it wide and attract a public enervated by decades of failure.

Philip K. Howard, a New York-based lawyer, author, civic and cultural leader and photographer,  is founder of the government- and legal-reform nonprofit organization Common Good (commongood.org) and author, most recently, of Try Common Sense: Replacing the Failed Ideologies of Right and Left (2019). This essay first appeared in American Purpose.

Theodore Roosevelt, the Progressive Party’s (aka “Bull Moose Party’’) presidential candidate in 1912, mixing ideologies in his speeches in this 1912 editorial cartoon by Karl K. Knecht (1883–1972) in the Evansville (Ind.) Courier. The former president’s running mate was California Gov. Hiram Johnson.

Philip K. Howard: Of obsolete laws and the filibuster

Anything positive that comes out of Congress is big news, as with the recent bipartisan support for a $1 trillion infrastructure package. But that’s only half the job: Congress must also fix the delivery system that delays permitting and guarantees wasteful procurement. For example, building a resilient, interconnected power grid — probably the top environmental priority—is basically impossible in a legal labyrinth that gives any naysayer multiple ways to delay, and then to delay some more.

Congress has responsibility not only for enacting new laws, but for making sure old laws work sensibly. But Congress rarely fixes old laws. Congressional oversight consists of posturing at public hearings, not corrective legislation. Congress has effectively abdicated the oversight job to the executive branch and federal courts, which have inadequate authority to make needed legal repairs. The ship of state, weighed down by a century of statutory barnacles, plows slowly in the same direction year after year.

No statutory program works as it should. Infrastructure permitting can take a decade. Health care is a tangle of red tape, consuming upwards of 30 percent of total cost; that’s $1 million per doctor. In about half the states, teachers are outnumbered by noninstructional personnel, many focused on legal compliance. Accountability of public employees is nonexistent; 99 percent of federal employees receive a “fully successful” rating. Obsolete laws notoriously distort resources; the 1920 Jones Act, for example, makes it more expensive to build offshore wind turbines because of its requirement to use U.S.-built ships.

Washington is overdue for a spring cleaning. Only Congress has the authority to do this. But neither party has a vision about how, or even whether, to fix broken government. Congressional leaders are so dug in arguing about the goals of government that they have no line of sight to how laws actually work.

The partisan myopia is revealed by the current debate over whether to retain the Senate filibuster rule. Making it hard to enact new laws, supporters of a supermajority vote argue, encourages more deliberative new programs. Eliminating the rule, on the other hand, will allow narrow Democratic majorities to enact sweeping new progressive programs. These arguments pro and con presume that lawmaking is an additive process — that Congress’s main responsibility is to enact new programs.

Fixing old programs, however, also requires lawmaking. Should Senate rules discourage repairing existing programs? Conservative scholar F.H. Buckley argues for abolishing the supermajority entirely, even though that would mean more liberal programs in the Biden administration, because making it easier to repeal or fix broken laws would be far more impactful.

Debate over the filibuster provides an opportunity to rethink how Congress does its job. The constitutional separation of powers is designed to make it hard to enact new programs. But the Framers also knew that it was important to purge old laws. James Madison believed that “the infirmities most besetting Popular Governments…are found to be defective laws which do mischief before they can be mended, and laws passed under transient impulses, of which time & reflection call for a change.”

But the Framers did not focus on the fact that, once enacted, a program will be defended by an army of interest groups. That’s why It is more difficult to repeal or amend a law than to enact a new one. The determined defense of an obsolete program by a special interest, as economist Mancur Olson explained, will always trump the general interest of the common good. That’s why farm subsidies continue 80 years after the Great Depression ended.

All laws have unintended consequences. Circumstances change. Priorities need to be reset to meet current challenges. Agencies deviate from their congressional mandate. Clear lines of authority must be clarified to give infrastructure permits on a timely basis.

Congress must come up with a practical way to fix broken and obsolete programs. One procedural change might be for the Senate to eliminate the supermajority vote for amending or repealing laws. But the backlog of broken programs is too piled up to expect much impact from one procedural change. Congress needs to go further. Here are three changes specifically aimed at fixing broken laws:

1. Create nonpartisan “spring cleaning commissions” to recommend updated frameworks in each area. Then, as with base-closing commissions, the proposals would be submitted for an up-or-down vote by each chamber.

2. Require a sunset on all laws with budgetary impact. Over the course of a decade, Congress could then methodically update the statute books.

3. Revive “regular order” in Congress to provide more presumptive authority to congressional committees to fix old laws. Congress could further empower committees by automatically approving amendments that are supported by both the majority and committee ranking members.

The failure of Congress to take responsibility for the actual workings of its laws is beyond serious dispute. By delegating lawmaking to agencies, and abandoning effective oversight, Congress has severed the critical link to democratic accountability. Government keeps going in the same direction, no matter how unresponsive and ineffective. Its inability to adapt to public needs in turn spawns extremist candidates. In order to restore trust in Washington, Congress must change the rules so it can take responsibility for how laws actually work.

Philip K. Howard is a lawyer, author, New York civic and cultural leader and chairman of Common Good, a legal and regulatory reform organization that emphasizes the importance of taking institutional, political and personal responsibility. His Latest Book is Try Common Sense. This essay first ran in The Hill.

Philip K. Howard: Paralyzing ‘rights’ are used against the public interest; bring back fair accountability

The conviction of Minneapolis police officer Derek Chauvin for killing George Floyd may elevate trust in American justice, but it will do little, by itself, to repair trust in police. Nor can political leaders and their appointees do much to restore that trust, because police “rights” still render officers virtually immune from accountability and basic management decisions. Chauvin was known to be “tightly wound,” and the police department had previously received 18 complaints about him abusing his power. Despite the complaints, he was not terminated or transferred. He had his rights.

But what about the public’s rights against abusive officers? We should be protected from bad cops, of course, but we can’t get there using the language of rights. Analyzing public accountability as a matter of rights is circular: Whose rights?

Rights rhetoric sprung out of the 1960s to defend freedom against institutional discrimination. But rights have evolved into an offensive weapon against the legitimate interests of other citizens—by police to avoid accountability, by teachers to avoid returning to work, by journalists and academics to cancel offensive speech.

The fabric of a free society is torn by these self-interested rights. Upholding values like fairness, reciprocity, and mutual respect is difficult when individual rights preempt the rights of everyone else.

The solution is simple: Hold people accountable again. Take “tightly wound” cops off the beat. If college students cancel other students’ freedom to hear a speaker, invite the cancelers to matriculate elsewhere. Healthy teachers who claim their potential covid exposure entitles them not to teach should find other jobs: Why should they be more privileged than nurses and grocery clerks?

But there’s a hitch: Holding people accountable is claimed to violate their rights. We seek more justice, fairness, and freedom, but we deny ourselves the tool of accountability needed to accomplish these goals.

It’s time to reset the balance between public accountability and concerns about individual fairness. Accountability must be taken out of the penalty box: Restore the freedom, up and down the chain of responsibility, to make judgments about other people and their actions. We can provide safeguards against unfairness, but law should intercede only where there is systemic discrimination or demonstrated harassment.

A Condition of Freedom

Every day, each of us evaluates the people we deal with. These judgments about other people influence how we associate, come together, and strive to achieve our private and societal goals.

People judging people is the currency of a free society.

We think of accountability in its negative sense—as the stick for inadequate performance. But accountability is needed for a positive reason—to instill the mutual trust that everyone is doing their share. It assures mutuality of effort and values. Coworkers need to believe that energy, virtue, and cooperation will be rewarded while mediocrity, indifference, and selfishness will not be tolerated.

The paradox of accountability is that once it’s available, it rarely needs to be exercised. What’s important is the availability of accountability. Once mutual trust and obligation are established, an energetic and cooperative culture leads people to do their best.

Accountability is also the organizing principle of democracy: voters elect leaders who preside over an unbroken chain of accountability down to subordinate officials. But the links in our chain of accountability are broken. Police chiefs, school principals, and government commissioners have lost their ability to hold their personnel accountable. Over 99 percent of today’s federal employees receive a “fully successful” job rating. California has one of the country’s worst school systems but can terminate no more than two or three teachers per year for poor performance. In New York, a teacher who went to jail for selling cocaine had to be reinstated in his job after his release. Under Minneapolis’ collective bargaining agreement with its union, the city’s police chief couldn’t even reassign Derek Chauvin for past misconduct, let alone terminate him, without a legal proceeding.

Democracy can’t function effectively without accountability. The conditions for social trust disappear. One effect is widespread anger and resentment at people acting irresponsibly or demanding things they don’t deserve. Society goes into a downward spiral of cynicism and selfishness. Sometimes people take to the streets.

The Illusion of Objectivity

Most people probably support the idea of accountability; but who decides, and on what basis? Most experts and academics think the job can be defined by metrics, “key performance indicators,” or other unimpeachable criteria. The Supreme Court has embraced this idea: Thus, one dubious innovation of the 1960s rights revolution was the application of due process to public personnel decisions. “It is not burdensome to give reasons,” Justice Thurgood Marshall stated, “when reasons exist.”

But “objective” accountability leads inexorably to no accountability. Being a good cop, teacher, or coworker is more complex than can be defined by objective criteria. Focusing too much on metrics—test scores, arrests, quarterly profits—will skew behavior in ways that are typically destructive. As Jerry Muller puts it in The Tyranny of Metrics (2018), measurement is useful as a tool of human judgment but not a replacement for it.

Thus, the No Child Left Behind law held schools accountable for increases in test scores—and turned many schools into drill sheds. Some school officials, supposedly role models for our youth, were caught in organized cheating schemes. In a similar way, judging surgeons by their mortality rates led many to avoid the difficult surgeries that require the most skill. Paying corporate employees according to short-term sales or profits means they will act in ways that undermine long-term corporate health.

Successful accountability rarely involves black-and-white choices. The most important qualities of employees can’t be captured by objective criteria. Good judgment, a can-do attitude and a willingness to help others can be readily identified by co-workers but are not objectifiable.

A KIPP charter school principal described to me a teacher who looked perfect on paper and tried hard but could not succeed:

He just couldn’t relate to the students. It’s hard to put my finger on exactly why. He would blow a little hot and cold, letting one student get away with talking in class and then coming down hard on someone else who did the same thing … but the effect was that the kids started arguing back. It affected the whole school. Kids would come out of his class in a belligerent mood.… We worked with him on classroom management the summer after his first year. It usually helps, but he just didn’t have the knack. So, we had to let him go.

In The Moral Life of Schools (1993), a landmark study of the traits that distinguish effective teachers, Philip Jackson and his colleagues concluded,

Laying aside all exceptions, … there is typically a lot of truth in the judgments we make of others. And this is so even when we cannot quite put our finger on the source of our opinion. That truth, we would suggest, emerges expressively. It is given off by what a person says and does, the way a smile gives off an aura of friendliness or tears a spirit of sadness.

To complicate accountability judgments, they involve not just particular persons but the way they perform in particular settings. An effective grade-school teacher may be ineffective teaching high school. “Men are neither good nor bad,” as management expert Chester Barnard observed, “but only good or bad in this or that position.”

Today, the most important criteria for fair accountability are irrelevant because they’re not objectively provable. Some of the qualities “considered too subjective to stand up in court,” as Walter Olson notes in The Excuse Factory, include these: “temperament, habits, demeanor, bearing, manner, maturity, drive, leadership ability, personal appearance, stability, cooperativeness, dependability, adaptability, industry, work habits, attitude toward detail, and interest in the job.” How could the Minneapolis police chief prove that Derek Chauvin was too tightly wound?

The Irreducibility of Human Judgment

Reviving accountability requires coming to grips with the reality that it always requires subjective judgments, in context, about the relative performance of each employee. Since the 1960s, America has rebuilt its governing structures to eliminate human judgment as far as possible. Letting people make judgments about others leaves room for unfairness or bias. Who are you to judge? Worse, we’re told to distrust our own judgments as vulnerable to unconscious bias. How can we protect against that?

What’s needed is a new protocol that instills some level of trust in accountability judgments without getting mired in rigid rights, metrics, and near-endless legal arguments. The obvious solution is to restore the legitimacy of human judgment not only for supervisors but also for other stakeholders. Studies suggest that coworkers usually have a consensus view on who’s good and who’s not: “Everyone knows who the bad teacher is.”

A school could have a parent-teacher committee with authority to veto unfair termination decisions. A police department could have an accountability review committee comprised of police, prosecutors, and citizen representatives. Private companies like Toyota have workers’ councils that give opinions before an employee is let go.

Oversight committees are hardly infallible but can provide speed bumps against supervisory unfairness. Discriminatory practices can still be reviewed by courts or other authorities where there are credible allegations of systemic discrimination.

But the pervasive overhang of legal threats for personnel judgments must be removed. Legal proceedings asserting individual rights against accountability will be irresistible to many affected workers. Nature has wired people to self-justify, and the accountable individual, studies show, is uniquely incapable of judging the fairness of such a decision. How well anyone does in an organization, Friedrich Hayek put it, “must be determined by the opinion of other people.”

We’re trained to be reluctant to let people judge other people; we want legal proof. But putting personnel judgments through the legal grinder is even less reliable. How do you prove which person doesn’t try hard, or which teacher can’t hold students’ attention?

Journalist Steven Brill described one 45-day hearing to try to terminate a teacher who was not only inept but didn’t try. She never corrected student work, filled out report cards, or met even the most rudimentary responsibilities. Her defense? There was no proof that she had been given an instruction manual telling her to do these things. This type of sophistry is typical in due process hearings: As one union official put it, “I’m here to defend even the worst people.”

Cooking accountability in a legal cauldron is in most circumstances a recipe for bitterness and frustration. The personal disappointment of a job not working out, which would be quickly forgotten if the person got a new job, becomes a kind of holy war, consuming the life of the individual supposedly protected. Discrimination lawsuits are notorious for both their high emotions and their low success rate. A federal judge told me about a case in which the evidence was overwhelming that the employee was not up to the job—but the worker was in tears at the injustice done to him.

Honoring Everyone Else’s Rights

No human grouping can long survive if its members flout accepted norms of right and wrong or tolerate failure as normal.

The quest to make accountability a matter of objective proof has turned out to be a blind alley, leading inexorably to unaccountability. No one should have the right to be unaccountable. Any claim of superior rights violates everyone else’s rights. Rights are supposed to protect against unlawful coercion, not against the judgments of other free citizens or the choices needed to manage an institution.

Putting the magnifying glass on the accountable individual ignores the rights of other affected individuals. What about the unfairness to coworkers and the public of having to deal with an uncooperative or inept person? For institutions, removing accountability is like pouring acid over workplace culture. The 2003 Volcker Commission on the federal civil service found deep resentment at “the protections provided to those poor performers” who “impede their own work and drag down the reputation of all government workers.” That’s why America’s public culture too often lacks energy, pride, and effectiveness.

Democracy fails when public institutions can’t do their jobs properly. As demonstrated by abusive cops and inept teachers, viewing accountability as a matter of individual rights means that police, schools, and other social institutions can’t serve the public effectively. Democracy becomes vestigial, a process of electing figureheads who have little effective authority over the way government operates.

In all these ways and more, the loss of accountability has eroded the rights and freedoms of all Americans, compromising much of what is admirable and strong in American culture. Good government is impossible unless officials have room to use their common sense, but no one will trust officials without clear lines of accountability.

Like putting a plug back in a socket, restoring accountability will reenergize human initiative in government and throughout society. Most people want the freedom and self-respect of doing things in their own ways and the camaraderie of working with others who also value human initiative. But the freedom to take initiative has one condition: accountability. Individuals cannot be immune from the judgments of others without undermining freedom itself.

Philip K. Howard, a New York-based civic leader, author, lawyer and photographer, is founder of Common Good (commongood.org) and author, most recently, of Try Common Sense: Replacing the Failed Ideologies of Right and Left (2019). This essay first appeared in American Purpose

Philip K. Howard: Reboot America to reempower citizens

Georgia Sen. Raphael Warnock

Oklahoma City Mayor David Holt

The most compelling political statements today are those that focus on mutual respect and factual truth — such as this statement by Republican Mayor David Holt of Oklahoma City, just two days before the mob attacked the Capitol on Jan. 6, or the victory statement by Georgia Democrat Raphael Warnock after he won a U.S. Senate seat

But why does such a large group of Americans feel so alienated that they abandon basic civilized values? One of the main reasons, I think, is a sense of powerlessness. They're stretched thin, due to economic forces beyond their control. They don't think their views matter, or that they can make a difference in, say, their schools or communities. They can't even be themselves. Spontaneity, which philosopher Hannah Arendt considered "the most elementary manifestation of human freedom," is fraught with legal peril: "Can I prove what I'm about to say or do is legally correct?"

The cure requires reviving human responsibility at all levels of authority. People need to feel free to roll up their sleeves and get things done. They need to feel free to be themselves in daily interactions, accountable for their overall character and competence. A functioning democracy requires officials to take responsibility for results, not mindless compliance. In an essay published in January by the Yale Law Journal, "From Progressivism to Paralysis’’, I describe how good government slowly evolved into a framework that disempowers everyone, even the President, from acting sensibly.

Problems with the rollout of COVID-19 vaccines is only the latest manifestation of a micro-management governing philosophy that suffocates leadership as well as disempowering citizens.

It's time to reboot the system, not to deregulate but re-regulate in a way that revives the American can-do spirit at all levels of society. This requires a new movement. If you agree, please contact phoward@commongood.org.

Philip K. Howard is chairman of Common Good (commongood.org), the legal- and regulatory-reform organization. He’s based in New York and is a lawyer, civic and cultural leader, photographer and author. His books include The Death of Common Sense, Try Common Sense , The Rule of Nobody and Life Without Lawyers.

Philip K. Howard: Public-employee unions have been a disaster for democracy and the public interest

The NEA is the largest union in the United States.

It’s time to rethink the role of public-employee unions in democratic governance.  

Public-union intransigence has contributed to two of the most socially destructive events in the COVID-19 era. Rebuilding the economy after the pandemic ends also will be more difficult if state and local governments have to abide by featherbedding and other artificial union mandates.   

Public-employee unions are politically impregnable, but their corrosion of first principles of democratic governance may leave them open to constitutional attack.   

The lack of accountability imposed by union contracts has corroded democratic trust. The nearly nine-minute suffocation of George Floyd by Minneapolis policeman Derek Chauvin, every second shown on video, touched off protests around the country and social anger that may impact race relations for years.

But Chauvin should not have been on the job, and he likely would have been terminated or taken off the streets if police supervisors in Minneapolis had had the authority to make judgments about unsuitable officers. Chauvin had 18 complaints filed against him and a reputation for being “tightly wound,” not a good trait for someone carrying a loaded gun. 

But police union contracts make it very difficult to terminate officers. Out of 2,600 complaints against police in Minneapolis since 2012, only 12 resulted in any sort of discipline and no officers were terminated. A 2017 report on police abuse nationwide revealed that union contracts make it extremely difficult to remove officers with a repeated history of abuse.  

Teachers unions wield similar power. Dismissing a teacher, as one school superintendent told me, is not a process, it’s a career. California ranks near the bottom in school quality but is able to dismiss only two out of 300,000 teachers in a typical year.

Because of COVID-19, teachers unions have adamantly refused to allow teachers to return to work for a year, harming millions of students. 

Because many parents can’t work if children are not in school, teachers unions are also impeding our ability to reopen the economy.

Yet most parochial and private schools in the U.S. have reopened, without serious consequences, as have schools in Europe. It is safe to reopen schools, according to the Centers for Disease Control, as long as teachers and students follow certain protocols. Unions now say they’ll put a toe in the water, starting in the spring, when another school year is almost over.   

The bottom line is inescapable: Public-employee unions do not serve the public's best interests.   

How did public-employee unions turn into public enemies? Until the 1960s, collective bargaining was not lawful in government — it’s hardly in the public interest to give public employees power to negotiate against the public interest.   

As President Franklin Roosevelt put it:  “The process of collective bargaining… cannot be transplanted into the public service…. To prevent or obstruct the operations of Government …. by those who have sworn to support it, is unthinkable and intolerable.”  

Public-employee union power is largely an accident of history, one of the many unintended effects of  the 1960s rights revolution. The first shoe to drop was Executive Order 10988, in which President John F. Kennedy, as payback for political support, permitted collective bargaining for federal employees.   

Public unions soon demanded similar rights from states. Without any serious debate, New York in 1967 permitted collective bargaining, followed by California in 1968.   

Unions gained strength with every new administration. The rhetoric was virtuous:  Who can be against the rights of public employees? But the velvet glove of rights barely disguised the political iron fist.

Public employees represent almost 15 percent of the work force, probably the largest organized voting bloc. For more than 50 years, generations of political leaders have promised whatever it would take to get their support, including shields against accountability and rich pensions and benefits. In Illinois, a state now actuarily insolvent, 20,000 public employees enjoy pensions of more than $100,000 per year.  

A political solution is almost impossible. Union contracts have long tails, tying the hands of successive political leaders. Their political power also is different from that held by other interest groups;  political leaders are powerless without their cooperation.  

As labor leader Victor Gotbaum once put it, “We have the ability, in a sense, to elect our own boss.”   

Public unions wield this power not just to get benefits, but to dictate how government works.  After 80 meetings trying to cajole teachers back to work, Chicago Mayor Lori Lightfoot concluded that “they’d like to take over not only Chicago Public Schools, but take over running the city government.”  

Democracy can’t work if elected officials lack the ability to run government. As James Madison put it, democracy requires an unbroken “chain of dependence… the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President.” By shackling political leaders with thick contracts, and eviscerating accountability for cops and teachers, public unions have removed a keystone of democratic governance.  

Public unions are not a problem anticipated by the framers of the Constitution. But Article IV, Section 4 of the Constitution provides that “the United States shall guarantee to every State in this Union a Republican Form of Government.”  Known as “the Guarantee clause,” the provision has never been asserted in this context.

The history of the clause suggests that, by guaranteeing “a republican form of government,”  the framers meant to ensure that government would be accountable to voters and not to a monarch or other unaccountable power.

Public unions have severed a key link between voters and governance. They are immune from accountability, collect tribute in the form of featherbedding work rules and excessive pensions, and control what they do day-to-day instead of what voters need.  

It is time for a reckoning. The abuses of rogue police, teachers who won’t teach, and other indefensible public union controls cry out for constitutional redress.    

Philip K. Howard, a New York-based lawyer, author, civic and cultural leader and photographer, is founder of Campaign for Common Good and chairman of Common Good (commongood.org), a nonprofit legal- and regulatory-reform organization.
His latest book is Try Common Sense: Replacing the Failed Ideologies of Right and Left.

This column first ran in USA Today.

Full disclosure: The editor of New England Diary, Robert Whitcomb, has collaborated with his friend Mr. Howard in some Common Good projects.

Port Authority Police Benevolent Association, Englewood Cliffs, N.J., a typical small-town police union.

Philip K. Howard: The administrative state is paralyzing American society

VERNON, Conn.

Philip K. Howard’s powers of concision are remarkable. In a very readable Yale Law Journal piece, “From Progressivism to Paralysis,” Howard, founder of the nonprofit and nonpartisan reform group Common Good (commongood.org), writes:

 "The Progressive Movement succeeded in replacing laissez-faire with public oversight of safety and markets. But its vision of neutral administration, in which officials in lab coats mechanically applied law, never reflected the realities and political tradeoffs in most public choices. The crisis of public trust in the 1960s spawned a radical transformation of government operating systems to finally achieve a neutral public administration, without official bias or error. Laws and regulations would not only set public goals but also dictate precisely how to implement them. The constitutional protections of due process were expanded to allow disappointed citizens, employees, and students to challenge official decisions, even managerial choices, and put officials to the proof. The result, after fifty years, is public paralysis. In an effort to avoid bad public choices, the operating system precludes good public choices. It must be rebuilt to honor human agency and reinvigorate democratic choices.”

The gravamen of the article is that progressive precisionism causes paralysis because laws and regulations must be general and non-specific enough to allow administrative creativity. And, a correlative point, administrators should not be permitted to arrogate to themselves legislative or judicial functions that belong constitutionally to elected representatives.

Why not? Because in doing so the underlying sub-structure of democratic governance is subtly, and sometimes not so subtly, fatally undermined. The authority of governors rests uneasily upon the ability of the governed to vote administrators and representatives in and out of office, a necessary democratic safeguard that is subverted by a permanent, unelected administrative state that, like a meandering stream, has wandered unimpeded over its definitional banks.

Detecting a beneficial change in the fetid political air, Howard warns, “Change is in the air. Americans are starting to take to the streets. But the unquestioned assumption of protesters is that someone is actually in charge and refusing to pull the right levers. While there are certainly forces opposing change, it is more accurate to say that our system of government is organized to prevent fixing anything. At every level of responsibility, from the schoolhouse to the White House, public officials are disempowered from making sensible choices by a bureaucratic and legal apparatus that is beyond their control.”

And then he unleashes this thunderbolt:

“The modern bureaucratic state, too, aims to be protective. But it does this by reaching into the field of freedom and dictating how to do things correctly. Instead of protecting an open field of freedom, modern law replaces freedom.

“The logic is to protect against human fallibility. But the effect, as discussed, is a version of central planning. People no longer have the ability to draw on ‘the knowledge of the particular circumstances of time and place,’ which Nobel economics laureate Friedrich Hayek thought was essential for most human accomplishment. Instead of getting the job done, people focus on compliance with the rules.

“At this point, the complexity of the bureaucratic state far exceeds the human capacity to deal with it. Cognitive scientists have found that an effect of extensive bureaucracy is to overload the conscious brain so that people can no longer draw on their instincts and experience. The modern bureaucratic state not only fails to meet its goals sensibly, but also makes people fail in their own endeavors. That is why it engenders alienation and anger, by removing an individual’s sense of control of daily choices.”

Indeed, as a lawyer (sorry to bring the matter up), Howard probably knows at first hand that complexity, which provides jobs aplenty for lawyers and accountants, is the enemy of creative governance. The way to a just ordered liberty is not by mindlessly following ever more confusing and complex rules – written mostly by those who intend to preserve an iron-fisted status quo – but by leaving open a wide door of liberty in society for those who are best able to provide workable solutions to social and political problems.

Howard, I am told by those who know him well, is not a “conservative’’ in terms of the current American political parlance. For that matter, besieged conservative faculty at highbrow institutions such as Yale are simply exceptions that prove the progressive rule; such has been the case before and since the publication of Yalie William F. Buckley Jr.’s book, God and Man at Yale.

But I am also assured that Howard is an honest and brave man.

In an era in which democracy is being throttled by a weedy and complex series of paralytic regulations produced by the administrative state, any man or woman who can write this – “It is better to take the risk of occasional injustice from passion and prejudice, which no law or regulation can control, than to seal up incompetency, negligence, insubordination, insolence, and every other mischief in the service, by requiring a virtual trial at law before an unfit or incapable clerk can be removed” -- is worth his or her weight in diamonds.

Don Pesci is a Vernon-based columnist.

Sense of powerlessness leads to political insanity in America

Rioters in the Capitol on Jan. 6

The most compelling political statements today are those that focus on mutual respect and factual truth — such as this statement<https://simplifygov.us13.list-manage.com/track/click?u=9df171ae6d6b7a01570236616&id=74cae9b3ca&e=f8aee0dd0d by Republican Mayor David Holt, of Oklahoma City, just two days before the mob attacked the Capitol, or the victory statement https://simplifygov.us13.list-manage.com/track/click?u=9df171ae6d6b7a01570236616&id=e43c382fe9&e=f8aee0dd0d>t<https://simplifygov.us13.list-manage.com/track/click?u=9df171ae6d6b7a01570236616&id=e4f09d32e3&e=f8aee0dd0d by Georgia Democratic Sen.-elect Raphael Warnock.

But why does such a large group of Americans feel so alienated that they abandon basic civilized values? One of the main reasons, I think, is a sense of powerlessness. They're stretched thin, due to economic forces beyond their control. They don't think that their views matter, or that they can make a difference in, say, their schools or communities. They can't even be themselves. Spontaneity, which philosopher Hannah Arendt considered "the most elementary manifestation of human freedom," is fraught with legal peril: "Can I prove what I'm about to say or do is legally correct?"

The cure requires reviving human responsibility at all levels of authority. People need to feel free to roll up their sleeves and get things done. They need to feel free to be themselves in daily interactions, accountable for their overall character and competence. A functioning democracy requires officials to take responsibility for results, not mindless compliance. In an essay published this week by Yale Law Journal, "From Progressivism to Paralysis’’ https://simplifygov.us13.list-manage.com/track/click?u=9df171ae6d6b7a01570236616&id=9b9303c0e3&e=f8aee0dd0d>," I describe how good government slowly evolved into a framework that disempowers everyone, even the president, from acting sensibly.

The sluggish rollout of COVID-19 vaccines is only the latest manifestation of a micromanagement governing philosophy that suffocates leadership as well as disempowering citizens.

It's time to reboot the system, not to deregulate but re-regulate in a way that revives the American can-do spirit at all levels of society. This requires a new movement. If you agree, please contact phoward@commongood.org.

Philip K. Howard, a New York-based lawyer, civic and cultural leader, legal and regulatory reformer and photographer, is founder and chairman of Common Good (commongood.org). He’s the author of The Death of Common Sense, The Collapse of the Common Good, Life Without Lawyers, The Rule of Nobody and Try Common Sense.

Philip K. Howard: Principles to unify America

The Great Seal of the United States. The Latin means “Out of Many, One’’

“America is deeply divided”: That’s the post-mortem wisdom from this year’s election.

Surveys repeatedly show, however, that most Americans share the same core values and goals, such as responsibility, accountability and fairness. One issue that enjoys overwhelming popular support is the need to fix broken government. Two-thirds of Americans in a 2019 University of Chicago/AP poll agreed that government requires “major structural changes.”

President-elect Biden has a unique opportunity to bring Americans together by focusing on making government work better. Extremism is an understandable response to the almost perfect record of public failures in recent years. The botched response to COVID-19, and continued confusion over imposing a mask mandate, are just the latest symptoms of a bureaucratic megalith that can’t get out of its own way. Almost a third of the health-care dollar goes to red tape. The United States is 55th in World Bank rankings for ease of starting a business. The human toll of all this red tape is reflected in the epidemic of burnout in hospitals, schools, and government itself.

More than anything, Washington needs a spring cleaning. Officials and citizens must have room to ask: “What’s the right thing to do here?” If we want schools and hospitals to work, and for permits to be given in months instead of years, Americans at every level of responsibility must be liberated to use their common sense. Accountability, not suffocating legal dictates, should be our protection against bad choices.

But there’s a reason why neither party presented a reform vision: It can’t be done without cleaning out codes that are clogged with interest-group favors. Changing how government works is literally inconceivable to most political insiders. I remember the knowing smile of then-House Speaker  John Boehner’s (R.-Ohio) when I suggested a special commission to clean out obsolete laws, such as the 1920 Jones Act, which, by forbidding foreign-flag ships from transporting goods between domestic ports, can double the cost of shipping. I also remember the matter-of-fact rejection by then-Rep. Rahm Emanuel (D.-Ill.) of pilot projects for expert health courts — supported by every legitimate health-care constituency, including AARP and patient groups — when he heard that the National Trial Lawyers opposed it: “But that’s where we get our funding.”

Cleaning the stables would help everyone, but the politics of incremental reform are insurmountable. That’s why, as with closing unnecessary defense bases, the only path to success is to appoint independent commissions to propose simplified structures. Then interest groups and the public at large can evaluate the overall benefits of the new frameworks.

Over the summer, 100 leading experts and citizens, including former governors and senators from both parties, launched a Campaign for Common Good calling for spring cleaning commissions. Instead of thousand-page rulebooks, the Campaign proposed that new codes abide by core governing principles, more like the Constitution, that honor the freedom of citizens and officials alike to use their common sense:

Six Principles to Make Government Work Again

1. Govern for Goals. Government must focus on results, not red tape. Simplify most law into legal principles that give officials and citizens the duty of meeting goals, and the flexibility to allow them to use their common sense.

2. Honor Human Responsibility. Nothing works unless a person makes it work. Bureaucracy fails because it suffocates human initiative with central dictates. Give us back the freedom to make a difference.

3. Everyone is Accountable. Accountability is the currency of a free society. Officials must be accountable for results. Unless there’s accountability all around, everyone will soon find themselves tangled in red tape.

4. Reboot Regulation. Too few government programs work as intended. Many are obsolete. Most squander public and private resources with bureaucratic micromanagement. Rebooting old programs will release vast resources for current needs such as the pandemic, infrastructure, climate change, and income stagnation.

5. Return Government to the People. Responsibility works for communities as well as individuals. Give localities and local organizations more ownership and control of social services, including, especially, for schools and issues such as homelessness.

6. Restore the Moral Basis of Public Choices. Public trust is essential to a healthy culture. This requires officials to adhere to basic moral values — especially truthfulness, the golden rule, and stewardship for the future. All laws, programs and rights mist be justified for the common good. No one should have rights superior to anyone else.

Is America divided? Many of the problems that caused people to take to the streets this year reflect the inability of officials to act on these principles. The cop involved in the killing of George Floyd should have been taken off the streets years ago — but union rules made accountability impossible. The delay in responding to COVID was caused in part by ridiculous red tape. The inability to build fire breaks on the west coast was caused by procedures that disempowered forestry officials.

The enemy is not each other, as President-elect Biden has repeatedly said. The enemy is the Washington status quo — a ruinously expensive and paralytic bureaucratic quicksand. Change is in the air. But the politics are impossible. That’s why one of first acts of President Biden should be to appoint spring cleaning commissions to propose new frameworks that will liberate Americans at all levels of responsibility to roll up their sleeves and make America work again.

American government needs big change, but the changes could hardly be less revolutionary. Instead of attacking each other, Americans need to unite around core values of responsibility and good sense.

Philip K. Howard is founder of Campaign for Common Good. His latest book is Try Common Sense. Follow him on Twitter: @PhilipKHoward.

Mr. Howard, a lawyer, is the founder and chairman of the nonprofit legal- and regulatory-reform organization Common Good (commongood.org), a New York City-based civic and cultural leader and a photographer. This piece first ran in The Hill.

Philip K. Howard: Misdiagnosing what has led to failed state America

People want answers for what went wrong with America’s response to the COVID-19 pandemic—from lack of preparedness, to delays in containing the virus, to failing to ramp up testing capacity and the production of protective gear. But almost nowhere in the current discussion can one find a coherent vision for how to avoid the same problems next time or help restore a healthy democracy.

Bad leadership has been identified as a primary culprit. The “fish rots from the head,” as conservative columnist Matthew Purple puts it. There’s plenty to blame President Trump for, but stopping there, as, say, former New York Times critic Michiko Kakutani does, ignores many bureaucratic failures. Cass Sunstein gets closer to the mark by focusing on how red tape impedes timely choices, but even he sees the bureaucratic structures as fundamentally sound and simply in need of some culling. Sunstein suggests that “it might be acceptable or sensible to tolerate a delay” in normal times, but not in a pandemic. Tech investor Marc Andreessen sees a lack of national willpower, an unwillingness to grab hold of problems and build anew. Prominent observers such as Francis Fukuyama, George Packer and Ezra Klein blame a broken political system and a divided culture; they offer little hope for redemption, even with new leadership.

All misdiagnose what caused government to fail here, and they confuse causes with what are more likely symptoms. Fukuyama rightly identifies a critical void in American political culture: the loss of a high “degree of trust that citizens have in their government,” which countries such as Germany and South Korea enjoy. But why have Americans lost trust in their government?

No doubt, after this is all over, a report will catalog the errors and misjudgments that let COVID-19 shut down America. The report will likely begin years back, when officials refused to heed warnings about pandemic planning. It will further expose President Trump, who for almost two months said that the coronavirus was “totally under control.” Errors of judgment like these are inevitable, to some degree—they happened before and after Pearl Harbor and 9/11, too—and with luck, they will inform future planning. The light will then shine on the operating framework of modern government, revealing not mainly errors of judgment, or cultural divisions, but a tangle of red tape that causes failure. At every step, officials and public-health professionals were prevented from making vital choices by legal obstacles.

Andreessen is correct that Americans have lost the spirit to build, but that’s because we’re not allowed to build. A governing structure that takes upward of a decade to approve an infrastructure project and ranks 55th in World Bank assessments for “ease of starting a business” does not encourage individual and institutional initiative. Of course Americans don’t trust government—it gets in the way of their daily choices, even as it fails to meet many national needs.

Our response to the COVID-19 missteps should not be to wring our hands about our miserable political system, or about the cynicism and selfishness that have infected our culture. We should focus on why government fails in making daily choices. What many Americans see clearly—but most public intellectuals cannot see—is a system that prevents people from acting on their best judgment. By re-empowering officials to do what they think is right, we may also reinvigorate American culture and democracy.

The root cause of failed government is structural paralysis. What’s surprising about the tragic mishaps in dealing with COVID-19 is how unsurprising they were to the teachers, nurses and local officials who are continually stymied by bureaucratic rules. A few years ago, a tree fell into a creek in Franklin Township, N.J., and caused flooding. A town official sent a backhoe to pull it out. But then someone, probably the town lawyer, pointed out that a permit was required to remove a natural object from a “Class C-1 Creek.” It took the town almost two weeks and $12,000 in legal fees to remove the tree.

In January, University of Washington epidemiologists were hot on the trail of COVID-19. Virologist Alex Greninger had begun developing a test soon after Chinese officials published the viral genome. But while the coronavirus was in a hurry, the Food and Drug Administration (FDA) was not. Greninger spent 100 hours filling out an application for an FDA “emergency-use authorization” (EUA) to deploy his test in-house. He submitted the application by e-mail. Then he was told that the application was not complete until he mailed a hard copy to the FDA Document Control Center.

After a few more days, FDA officials told Greninger that they would not approve his EUA until he verified that his test did not cross-react with other viruses in his lab, and until he agreed also to test for MERS and SARS. The Centers for Disease Control (CDC) then refused to release samples of SARS to Greninger because it’s too virulent. Greninger finally got samples of other viruses that satisfied the FDA. By the time they arrived, and his tests began, in early March, the outbreak was well on its way.

Regulatory tripwires continually hampered those dealing with the spreading virus. Hospitals learned that they couldn’t cope except by tossing out the rulebooks; other institutions weren’t so lucky. For example, after schools were shut down, needy students no longer had meals. Katie Wilson, executive director of the Urban School Food Alliance and a former Obama administration official, secured an agreement in principle to transfer federal meal funding to a program that provides meals during summer months. But red tape required a formal waiver from each state, which in turn required formal waivers from Washington. The bureaucratic instinct was relentless: school districts in Oregon were first required to “develop a plan as to how they are going to target the most-needy students.” Meantime, the children got no meals. New York Times columnist Bret Stephens, interviewing Wilson, summarized her plea to government: “Stop getting in the way.”

What’s needed to pull the tree out of the creek is no different than what’s needed to feed school kids: responsible people with the authority to act. They can be accountable for what they do and how well they do it, but they can’t succeed if they must continually pass through the eye of the bureaucratic needle.

Reformers are looking in the wrong direction. Electing new leaders won’t liberate Americans to take initiative. Nor is “deregulation” generally the solution for inept government; the free market won’t protect us against pandemics. The only solution is to replace the current operating system with a framework that empowers people again to take responsibility. We must reregulate, not deregulate.

American government rebuilt itself after the 1960s on the premise of avoiding human error by replacing human choice. That’s when we got the innovation of thousand-page rulebooks dictating the one-correct-way to do things. We mandated legal hearings for ordinary supervisory choices, such as maintaining order in classrooms or evaluating employees. We replaced human judgment with rules and objective proof. Finally, government would be pure—almost like a software program. Just follow the rules.

For 50 years, legislative and administrative law has piled up, causing public paralysis and private frustration. Almost no one has questioned why government prevents people from using their common sense. Conservatives misdiagnose the flaw as too much government; liberals resist any critique of public programs, assuming that any reform is a pretext for deregulation. In the recent Democratic presidential debates, no one asked how to make government work better.

Experts have it backward. Polarized politics, they say, causes public paralysis. While hyper-partisanship certainly paralyzes legislative activity, the bureaucratic idiocies that delayed everything from COVID-19 testing to school meals had nothing to do with politics. Paralysis of the public sector came first, leading to polarized politics.

By the 1990s, broad public frustration with suffocating government fueled the rise of Newt Gingrich. The growth of red tape made it hard to make anything work sensibly. Schools became anarchic; health-care bureaucracy caused costs to skyrocket; getting a permit could require a decade; and Big Brother was always hovering. Is your paperwork in order? Americans kept electing people who promised to fix it—the “Contract with America,” “Change we can believe in,” and “Drain the swamp”—but government was beyond the control of those elected to lead it. What happens when politicians give up on fixing things? They compete by pointing fingers—“It’s your fault!”—and resort to Manichean theories and identity-based villains. Public disempowerment breeds extremism.

A functioning democracy requires the bureaucratic machine to return to officials and citizens the authority needed to do their jobs. That necessitates a governing framework of goals and principles that re-empowers Americans to take responsibility for results. Giving officials, judges, and others the authority to act in accord with reasonable norms is what liberates everyone else to act sensibly. Students won’t learn unless the teacher maintains order in the classroom. New ideas by a teacher or parent go nowhere if the principal lacks the authority to act on them. To get a permit in timely fashion, the permitting official must have authority to decide how much review is needed. To enforce codes of civil discourse—and not allow a small group of students to bully everyone else—university administrators must have authority to sanction students who refuse to abide by the codes. To prevent judicial claims from becoming weapons of extortion, judges must have authority to determine their reasonableness. To contain a virulent virus, public-health officials must have authority to respond quickly.

Giving officials the needed authority does not require trust of any particular person. What’s needed is to trust the overall system and its hierarchy of accountability—as, for example, most Americans trust the protections and lines of accountability provided by the Constitution. There’s no detailed rule or objective proof that determines what represents an “unreasonable search and seizure” or “freedom of speech.” Those protections are nonetheless reliably applied by judges who, looking to guiding principles and precedent, make a ruling in each disputed situation.

The post-1960s bureaucratic state is built on flawed assumptions about human accomplishment. There is no “correct” way of meeting goals that can be dictated in advance. Nor can good judgment be proved by some objective standard or metric. Judgments can readily be second-guessed, as appellate courts review lower-court decisions, but the rightness of action almost always involves perception and values. That’s the best we can do.

The failure of modern government is not merely a matter of degree—of “too much red tape.” Its failure is inherent in the premise of trying to create an automatic framework that is superior to human choice and judgment. We thought that we could input the facts and, as Czech playwright and statesman Vaclav Havel once parodied it, “a computer . . . will spit out a universal solution.” Trying to reprogram this massive, incoherent system is like putting new software onto a melted circuit board. Each new situation will layer new rules onto ones already short-circuiting.

Nothing much will work sensibly until we replace tangles of red tape with simpler, goal-oriented frameworks activated by human beings. This is a key lesson of the COVID-19 crisis. It’s time to reboot our governing system to let Americans take responsibility again.

Philip K. Howard, a New York-based lawyer, civic leader and photographer, is founder of Common Good. His latest book is Try Common Sense: Replacing the Failed Ideologies of Right and Left. This piece first ran in City Journal.

Philip K. Howard: America needs a social contract to address COVID-19

The original cover of Thomas Hobbes's work Leviathan (1651), in which he discusses the concept of the social contract theory

America can’t stay closed indefinitely. But reopening America’s shops, schools and other public places is fraught with uncertainties and risks. In some jobs and settings the precautions may not be possible.

These risks and social controls conflict sharply with an American legal system that is built upon principles of uniform treatment, avoidance of risk, privacy, and, especially, free choice. Who makes these decisions? Is anyone liable when, inevitably, some people get infected?

Reopening society requires a new pandemic social contract, with new benefits and liability framework. Instead of avoiding risk, the guiding principle, as in wartime, should be to confront the risks of this common enemy and not to surrender our vibrant society in the vane hope that the virus will go away

Many institutions, retail establishments and employers will be reluctant to reopen because of fear of legal exposure. For some, the contingent liability risk may tip the balance against reopening. While it is impossible to know for certain where someone contracted the virus, it is quite easy to identify “hot spots” such as bars or meat-packing plants. Whether those businesses should reopen, and with what precautions, are decisions to be made by government, not by individual plaintiffs or their lawyers.

Trust in the new rules is essential for Americans to brave the risks and to adhere to the guidelines. A new pandemic social contract is needed that reassures Americans that they will not be left to fend for themselves if they get sick. Because the overhang of potential risk to individuals and liability to employers could significantly impact the national economy, this new social contract should be made as matter of federal law.

The best model for a reliable pandemic social contract is the workers’ compensation system, a no-fault program in which injured workers relinquish any right to sue in exchange for the employer’s agreement to fund health-care costs and wages. Because COVID-19 does not originate in unsafe workplace conditions, however, the new program should be funded predominantly by the federal government.

The new pandemic social contract could look like this:

America’s health-care patchwork is not well-suited to a pandemic. To avoid the inequities and inefficiencies of reimbursing health-care providers through thousands of different plans, the federal government should pay providers directly for all COVID treatments. The complexities of Medicare and Medicaid enrollment make them unsuitable as a conduit. A separate branch of theCenters for Medicare and Medicaid Services could be established to fund and audit COVID health-care costs, based on one guiding mandate.

Going forward, the federal government should fund COVID treatments.

Going back to work involves risks for each worker. Some will decide that it’s not worth the risk of exposure, and try to find jobs that allow them to work remotely. That will their choice. But Americans who choose to return to work should not bear the economic costs when they get ill.

Infected Americans with few symptoms should also be encouraged to quarantine so that they don’t infect co-workers. Sick employees should receive salaries as provided in state workers’ compensation schemes, except that, because the disease was not a workplace accident, the federal government should fund the vast majority of this, perhaps 90 percent. Leaving the employers with a small portion of the exposure will provide incentives to maintain safe workplace protocols, and also to oversee the validity of claims.

As part of the pandemic social contract, Congress should preempt liability except for cases of intentional misconduct—such as flouting safety guidelines. No one in America created COVID-19, and no one should be liable unless they deliberately misbehave.

Clarity in these lawsuit limitations is vital to give employers confidence that if they do not act irresponsibly, they will not be liable. No matter what the standard of liability, however, lawyers can be expected to push the envelope.

Intentional misconduct requires hard proof, but setting soft standards such as “gross negligence,” as some have proposed, can be easily circumvented by legal rhetoric. Perfect adherence to protocols is also unrealistic; sometimes the tables will end up 5 ½ feet apart instead of 6 feet. To reliably apply the liability limitations, Congress should create a special pandemic court to handle all pandemic injury claims, along the lines of the special vaccine court it created when concerns about liability basically shut down vaccine production.

Just as the federal government organizes and funds national defense, so too should it organize a comprehensive social contract for pandemics. Americans need a simple, fair framework they can rely upon to give them the confidence to go back to work

Philip K. Howard is a New York-based lawyer, author and chairman of the nonpartisan legal- and government-reform organization Common Good (and an old friend of the editor of New England Diary, Robert Whitcomb). He’s founder of the Campaign for Common Good. This essay first ran in The Hill.

Philip K. Howard: Fighting a pandemic in red-tape nation

— Photo buy Jarek Tuszyński

America’s current crisis reveals the paralytic nature of its regulatory order. 

America failed to contain COVID-19 because, in part, public-health officials in Seattle were forced to wait for weeks for bureaucratic approvals intended—ironically—to avoid mistakes. Now that the virus is everywhere, governors and President Trump have tossed rulebooks to the winds. It would otherwise be illegal to do much of what we’re doing—setting up temporary hospitals, organizing mass testing, buying products and services from noncertified providers, practicing telemedicine, using whatever disinfectant is handy . . . without documenting and getting preapprovals for each step.

America will get past this health crisis, thanks to the heroic, unimpeded dedication of health-care professionals. But what will save America from a prolonged recession? Many shops and restaurants will be out of business. Dormant factories and service organizations will need inspections before reopening. Schools and other social services will have to restart, with personnel changes and new needs that cannot be anticipated. Government agencies will be overwhelmed by requests for permits. Lawyers will present corporate clients with exhausting legal checklists. Lawsuits will be everywhere. Months, perhaps years, will pass as America tries to restart its economic engine while bogged down in bureaucratic and legal quicksand.

We need an immediate intervention to break America free from its bureaucratic addiction. It must be done if the nation is to come back whole in any reasonable time frame. The first step is for Congress to authorize a temporary Recovery Authority with the mandate to expedite private and public initiatives, including the waiver of rules and procedures that impede public goals. States, too, should set up recovery authorities to expedite permitting and waive costly reporting requirements.

Aside from broad goals, most regulatory codes don’t reflect a coherent governing vision. All these regulations just grew, one on top of the other, as successive generations of regulators thought of ways to tell people how to do things. Getting America up and running requires the ability to cut through all this red tape quickly. A Recovery Authority could expedite productive activity in many areas.

The U.S. ranks 55th in World Bank rankings for “ease of starting a business”—behind Albania and just ahead of Niger. The main hurdles are regulatory micromanagement and balkanization. You don’t get a permit from the “government” but from many different agencies, sometimes with contradictory requirements. Mayor Michael Bloomberg discovered that starting a restaurant in New York City required approvals from up to 11 agencies.

State recovery authorities could expedite permitting by creating “one-stop shops” such as those that operate in other countries. The lead agency would be given authority to waive rules and procedures not necessary to safeguard the broad public interest. Instead of waiting months, or longer, until inspectors can make site visits to verify compliance, the lead agency would have authority to grant permits, subject to later inspection.

To stimulate the economy, President Trump has floated the idea of a $2 trillion infrastructure plan. A big infrastructure buildout was promised as part of the 2009 stimulus as well—five years later, a grand total of 3.6 percent of the stimulus had been spent on transportation infrastructure. That’s because, as then-President Obama put it, “there’s no such thing as shovel-ready projects.”

Bureaucratic delay is ruinously expensive. In a 2015 report, “Two Years Not Ten Years,” I found that a six-year delay in infrastructure permitting, compared with the timeline in other countries, more than doubles the effective cost of infrastructure projects. I also found that lengthy environmental review is usually harmful to the environment, by prolonging polluting bottlenecks. Work rules and other bureaucratic constraints precluding efficient management multiply the waste of public funds. The Second Avenue subway, in New York City, cost $2.5 billion per mile; a similar tunnel in Paris, using similar machinery, cost about one-fifth as much.

The Recovery Authority could get people working immediately, and double our bang for the buck, by giving one federal agency authority (in most cases, the Council on Environmental Quality) the presumptive power to determine the scope of environmental review, focusing on material impacts; granting the Office of Management and Budget presumptive authority to resolve disagreements among agencies; and requiring that New York State and other recipients of federal funding waive work rules not consistent with accepted commercial practices.

Schools have become hornets’ nests of red tape and legal disputes. Reporting requirements weigh down administrators and teachers with paperwork. More than 20 states now have more noninstructional personnel than teachers—mainly to manage compliance and paperwork. Rigid teaching protocols and metrics cause teachers to burn out and quit. Almost any disagreement—with a parent over discipline, with a teacher or custodian over performance—can result in a legal proceeding, further diverting educators from doing their jobs. Federal mandates skew education budgets without balancing the needs of all the students. Special-education mandates now consume a third or more of some school budgets—much of it through obsessive bureaucratic documentation.

Getting schools restarted could easily get bogged down in bureaucratic requirements and defensive legal contortions. The Recovery Authority could replace reporting requirements with evaluations of actual performance. It could also replace entitlements with principles that allow balancing the interests of all students, and formal dispute mechanisms with informal, site-based review by parent-teacher committees.

The Recovery Authority should look at health-care innovations and waivers that have worked throughout the coronavirus crisis—such as telemedicine—and continue these practices, beyond the recovery period.

The federal Recovery Authority should aim to liberate initiative at all levels of society while honoring the goals of regulatory oversight. It should not be part of the executive branch, but rather, established along the same lines as independent base-closing commissions. For waivers of regulations and all other actions consistent with underlying statutes, the executive branch would be authorized to act on recommendations within the scope of the Recovery Authority’s mandate. For  statutory mandates, Congress should explicitly provide temporary waiver authorization to permit balancing and accommodations.

Every president since Jimmy Carter has campaigned on a promise to rein in red tape. Instead, it’s gotten worse because no one has thought to question the underlying premise of thousand-page rulebooks dictating precisely how to achieve public goals.  The mandarins in Washington see law not as a framework that enhances free choice but as an instruction manual that replaces free choice. The simplest decisions—maintaining order in the classroom, getting a permit for a useful project, contracting with a government—require elaborate processes that could take months or years. Essential social interactions—a doctor talking with the family about a sick parent, a supervisor evaluating an employee, a parent allowing children to play alone—are fraught with legal peril. Slowly, inexorably, a heavy legal shroud has settled onto the open field of freedom. America’s can-do culture has been supplanted by one of defensiveness.

COVID-19 is the canary in the bureaucratic mine.  The toxic atmosphere that silenced common sense here emanates constantly from a governing structure that is designed to preempt human judgment.    The theory was to avoid human error.  But the effect is to institutionalize failure by barring human responsibility at the point of implementation.    It’s as if we cut off everyone’s hands.  

Coming out of this crisis, America needs a Recovery Authority to unleash potential across all sectors. Perhaps now is also the moment when Americans pull the scales from their eyes and see our bureaucratic system for what it is—one governed by a philosophy that fails because it doesn’t let people roll up their sleeves and get things done.

Philip K. Howard is a lawyer, writer, New York civic leader, photographer and founder and chairman of Common Good.  His latest book is Try Common Sense: Replacing the Failed Ideologies of Right and Left. 

Campaign for Common Sense

Watch for action by the new national reform project called Campaign for Common Sense, started by the legal- and regulatory-reform organization Common Good. The project’s Web site will be up soon. One of the organization’s key goals is to start rebuilding America’s crumbling infrastructure by cutting red tape.

Philip K. Howard: Action, not moderation, is the salve for American polarization

Polarizer in chief

Polarized politics is a formula for public failure, a downward spiral of distrust and greater paralysis. Pulling out of this spiral is difficult because polarization is good business for politicians and pundits. Political coffers fill up with contributions from people who loathe the other side. President Trump has a unique genius for sowing division — playing to people’s fears and attacking the weaknesses of his opponents. Social media fans the flames of the latest outrage.

Some think the cure to polarization is more moderate politicians. By fixing electoral machinery that appears to favor extremists, such as gerrymandering and restricted primaries, reformers hope to return to the happy days when leaders from both parties could sit down and work things out. They long for Ronald Reagan and House Speaker Tip O’Neill.

Moderation is just happy talk, however, without a new vision of how to govern better. How would moderate leaders fix schools, or reduce health care costs, or issue permits within a year’s time instead of a decade? None of the candidates in the 2020 presidential election offers a cure to the alienation that Americans feel towards Washington.

Washington, meanwhile, plows forward, a giant bureaucratic state crammed with red tape and obsolete programs. Democracy has degenerated into a kind of legal perpetual-motion machine, taking upwards of a decade to approve vital infrastructure projects. Bureaucracy is everywhere. According to the World Bank, the U.S. ranks 53rd in ease of starting a business. Practical choices throughout society are stymied by overbearing law — whether maintaining order in the classroom, being candid with an employee, or letting children walk to school alone. Is your paperwork in order?

Reformers have confused cause and effect: Paralyzed government, not polarization, is the original sin of modern government. Bureaucratic densification since the 1970s has made government beyond human control. Government’s inability to respond to public needs is the chicken that laid the egg of polarized politics. The inability of Americans to roll up their sleeves and fix things leads inexorably to extremism. Political leaders who can’t get things done compete instead by pointing fingers and screaming louder.

Populism thrives on fear and anxiety. A collective sense of powerlessness spawns the instinct to vilify “the other.” Government is toothless to deal with dislocations of global commerce, new technology and waves of immigrants. Self-reliance is stymied by faceless bureaucracy. Unresponsive government prompts anxious citizens to embrace populist solutions.

In 1939, the organizational expert Peter Drucker wrote that fascism had taken root because the establishment had offered “no new order” to counteract the dislocation of the Great Depression. But fascism was doomed to fail, Drucker argued, because its popularity was based on attacking scapegoats, not a positive governing vision. The solution to a destabilized society in which people feel powerless, Drucker argued, must be “built upon a concept of the nature of man and of his function and place in society.” People must be able to help themselves and their society.

The way out of America’s downward spiral is not moderation but a radical spring-cleaning of government to re-empower Americans at every level of responsibility. Liberating people to act, not top-down solutions, is the cure to paralysis.

The only cure for alienation is ownership. This requires not wholesale de-regulation, but rebooting government with simpler, open frameworks that set goals and governing principles. Simpler codes will allow Americans to understand what is expected of them and afford them flexibility to get there in their own ways. Only then will officials and citizens have the freedom to make sense of daily choices.

Action, not moderation, is the salve for polarization. Conventional wisdom is that letting individuals use their judgment will exacerbate social conflict. Evidence suggests the opposite: A study in Britain found that professionals with opposed ideological views generally arrive at similar solutions when confronting concrete problems. Studies of American judges and of German bank regulators also found remarkable consistency.

Local communities must be able to run schools in their own ways. Health care providers must be accountable for overall quality, not to compliance police playing “gotcha.” Officials must be empowered to set up and give permits in “one-stop shops.” Governors must have freedom to try new ways to manage unemployment relief and other public services. Citizens must have someone to call, and to blame, when things aren’t working.

Reviving human responsibility does not solve societal challenges such as income stagnation, climate change, or immigration. But it reinvigorates a culture of practical action that is the antidote to corrosive polarization. Empowering people to be practical in their daily challenges will likely rub off in their political views. Polarization will fade away when Americans, waking up each morning, feel that both they and their officials in Washington can make a difference again.

Philip K. Howard is chair of Common Good and author of the new book Try Common Sense (W.W. Norton, 2019). Follow him on Twitter @PhilipKHoward. He’s also a friend and occasional colleague of New England Diary editor Robert Whitcomb. This piece first ran in The Hill.

TAGS DONALD TRUMP POLITICAL POLARIZA

Baker tries to streamline transit improvements

— Photo by LuK3

From Robert Whitcomb’s “Digital Diary,’’ in GoLocal24.com

‘It takes much longer in the U.S. than in other developed nations to build and repair public infrastructure, as my old friend Philip K. Howard, who chairs Common Good, has researched, and written about so well, in such books as Try Common Sense.

The Massachusetts Bay Transportation Authority is in need of massive repairs and major subway and commuter train service expansion. So it was heartening to read that the public-private partnership aspect of Gov. Charlie Baker’s 10-year, $18 billion transportation plan includes provisions to streamline the procurement process.

The Boston Globe had an example of how stuff gets held up and things can be moved along at a faster clip.

“Most notably, the bill contains language aimed at avoiding what went down in Quincy last year: A development at the MBTA’s North Quincy Station ground to a halt after Attorney General Maura Healey ruled the T broke the law by not bidding out work for a parking garage that would be built there. A private developer was going to build the garage, but it would have ultimately been owned by the T.

“Baker’s bill would avoid another such situation by relaxing procurement rules to allow developers to move forward on a wide array of public transportation infrastructure — from staircases to stations — that would be part of their projects but deeded to the state or the MBTA. ‘’

One of the more interesting Baker administration proposals is to set up a new, $50 million program for a $2,000-per-employee tax credit for employers who let workers telecommute, thus reducing the pressure on Greater Boston’s often clogged roads during weekday rush hours. Of course, few managers would be affected.

To read more about the Baker plan, which of course would very much affect neighboring states, too, hit these links:

https://www.bostonglobe.com/business/2019/07/25/baker-transportation-bill-aims-encourage-public-private-partnerships/gC5V38s7pOzcv2uzoVshCJ/story.html

https://www.wbjournal.com/article/baker-seeks-arsenal-of-tools-in-18b-transportation-bond-bill

Philip K. Howard: Answers to Washington gridlock are hiding in plain site

The cornucopia of policy ideas presented by Democratic presidential hopefuls is remarkable mainly in what’s been omitted: the need to overhaul Washington so that it can deliver public services effectively. A huge opportunity awaits any political leader with the nerve to seize it.

A recent survey by political scientist Paul Light found that about 60% of Americans support “very major reform” of Washington. That’s what voters had hoped for when Barack Obama promised “change we can believe in.” When that didn’t work out, 8 million Obama voters turned around and voted for a rich braggadocio who promised to “drain the swamp.”

But Trump’s bluster hasn’t translated into any coherent plan to fix Washington. His executive orders mainly undo Obama’s executive orders, such as removing restrictions on coal-burning power plants. That’s probably not the swamp-draining that most voters hoped for.

Instead of tapping into the broad centrist demand for overhaul, Democrats are rushing to the left. They’re competing with promises of more public freebies (Medicare for all, college debt forgiveness, universal basic income) and with angry sermons about victimization. But voters know that the public fisc is already gushing red ink (the annual deficit is about $10,000 per family), and identity politics is toxic to centrists who believe in self-reliance.

It’s almost as if Trump himself had scripted Democratic positions. He has a feral genius for ridiculing weakness. Trump may not have a vision for dealing with most of America’s challenges, but he likely won’t need one. He knows that Americans hate Washington, and he’s a virtuoso at playing that tune.

Instead of promising the moon, why don’t Democrats promise to clean house? Public opinion is aligned for a historic transformation of Washington. A vision for a simpler, more practical government could appeal not only to centrists but also to Republican voters who know in their hearts that real leadership is impossible without a positive governing vision and moral authority.

Almost any sensible reconfiguration of Washington would dramatically advance the stated goals of both parties:

• Rebooting legacy bureaucracies could marshal the needed resources for climate change and wage stagnation. Runaway bureaucracy is staggeringly expensive. About 30% of the healthcare dollar is spent on administration, or about $1 million per physician. Schools in more than 20 states now have more non-instructional personnel than teachers.

• Republicans want to cut red tape and get government off our backs. A simpler, goals-oriented regulatory framework would eliminate 1,000-page rulebooks for schools, hospitals and employers. Instead of Big Brother breathing down our necks, Washington would become a distant trustee, protecting against miscreants who cross the line, not micromanaging daily life in America.

The sticking point to overhauling Washington is not American voters, but Washington itself. Washington is organized to preserve the status quo. Political leaders are entrapped by their alliances to interest groups. Gosh, we can’t get rid of 1930s programs such as farm subsidies ($16 billion), or inflated wages on infrastructure (about 20% higher than market), or lower taxes for investment professionals ($14 billion), because those interest groups help Washington pols get reelected.

Fig leaves can’t disguise the self-interest of these legacy programs. When Democrats talk about “due process” for teachers and civil servants, voters know this means zero accountability. When they wave the sword of individual rights, voters start holding on to their wallets. Indeed, much of Trump’s voter appeal is his refusal to kowtow to the politics of victimization and correctness.

Republicans aren’t much better. When they talk about stimulating the economy with lower taxes, they usually mean lining the pockets of their supporters by increasing the deficit, not reducing the public waste they deplore. When Republicans talk about deregulation, they don’t usually mean cutting red tape, but cutting regulatory oversight altogether—usually to benefit an industry, not the public. Their anti-regulatory overreach helps explain why the last four Republican administrations have been so ineffective at reining in big government—and, in fact, presided over bureaucratic growth.

Governing shouldn’t be this hard. It doesn’t take a genius to remove mindless red tape from schools and hospitals. No Ph.D. is required to phase out obsolete subsidies and reset priorities. Nor does it take a mind reader to discern what most voters want. Americans want government to be practical. And they want to be practical in their own lives and communities.

Being practical requires that officials and citizens are free to make choices. Then other people need to be free to hold them accountable. None of these choices are available today, because law has supplanted human responsibility. Practicality is illegal in Washington bureaucracy. That’s why, for example, it takes upwards of a decade to get a permit for vital infrastructure projects.

Nothing can get fixed in Washington until responsible humans can make new choices. That’s why the only path to a functioning democracy is to reboot Washington. Officials and citizens alike must be liberated to take responsibility. Instead of being shackled to 1,000-page rulebooks, we must be free to make choices that we think are sensible.

Rebooting Washington is a simple idea, as obvious to most voters as it is radical to most political insiders. The virtues are not hard to explain: It would both reset priorities and revive human agency as the activating mechanism for public choices. Public debate would focus on success and failure, not abstract theories. Electing new leaders would make a difference.

American voters know the system is broken. But it won’t be fixed by making voters choose between a liberal or conservative fork in the road. What Washington needs most is practicality, not ideology. The leader who articulates a principled vision for practical government could seize the day and lead a historic overhaul to restore common sense and dignity to all levels of public responsibility.

Philip K. Howard, chairman of Common Good, is a New York-based lawyer, civic leader, legal and regulatory reformer, author and photographer. His latest book is Try Common Sense: Replacing the Failed Ideologies of Right and Left. This piece first ran in Forbes magazine. Hit this link. Or this link.

Philip K. Howard: How to make a deal to address America's infrastructure crisis

A photo by Philip K. Howard in his "Peripheral Visions'' series, much of it about transportation infrastructure, some of it crumbling. To see more, please hit this link.

President Trump this week reiterated his commitment to “rebuild our crumbling infrastructure.” He called upon Congress to enact a law that “generates at least $1.5 trillion” and also to “streamline the permitting and approval process — getting it down to no more than two years, and perhaps even one.”

This would be an enormous boon to society, improving not only America’s competitiveness, but also creating a greener environmental footprint — while adding more than a million new jobs.

But environmental groups are lining up in opposition even before they’ve seen the details. Streamlining red tape, they argue, requires gutting environmental regulations. Are they really in favor of bloated processes that can take a decade or longer and produce impenetrable 5,000-page environmental review statements?

The facts are not on their side. A 2015 report by my organization, Common Good, found the following:

Other greener countries such as Germany approve large projects in less than two years, including environmental review.

 A typical six-year delay in large projects more than doubles the effective cost of the projects.

 Lengthy environmental reviews often harm the environment by prolonging polluting bottlenecks.

Modernizing America’s infrastructure is a necessity, not an ideology. Rickety transmission lines lose 6 percent of their electricity, the equivalent of 200 coal-burning power plants. About 2,000 “high-hazard” dams are in deficient condition. Century-old water-mains leak over 2 trillion gallons of fresh water a year. Over 3 billion gallons of gasoline are consumed by vehicles idling in traffic jams. Half of fatal car accidents are caused in part by poor road conditions.

Fixing this doesn’t require changing, much less gutting, environmental protections. Common Good has presented Congress with a three-page legislative proposal that creates clear lines of authority to make decisions on a timely basis: An environmental official would be authorized to focus the review on material issues, not thousands of pages of trivial detail; the White House could resolve disagreements among bickering agencies; federal law would preempt delays by state and local governments on interstate projects; and lawsuits would be expedited and limited to material environmental harms, not foot faults.

No one intended environmental review or permitting to take a decade. Current regulations say that analyses in complex projects should not exceed 300 pages. But the review for raising the roadway of the Bayonne Bridge, a project with virtually no environmental impact (it used the existing bridge foundations), was 20,000 pages including exhibits. This is bureaucratic insanity.

What the current process does is give environmental groups a veto. Just by threatening to sue, they can drag processes on for years. But where in the Constitution does it empower naysayers to call the shots? Environmental review should not be used to prevent elected officials from making decisions.

Funding is also obviously needed. The political deal is obvious: Democrats should agree to streamline permitting as long as Republicans provide adequate funding. Most roads and other such projects lack a revenue stream and require public funds. It’s a good investment, returning about $1.50 for every dollar spent, according to Moody’s. It’ll be an even better investment when effective costs are cut in half by streamlining permitting.

Trump’s initiative is a moral as well as a practical imperative. We are living off the infrastructure built by our grandparents and their grandparents. What shape will it be in when we bequeath it to our grandchildren?

New York has choke points that can’t tolerate any further delay. The two rail tunnels coming into Penn Station from New Jersey are over 100 years old, and were badly damaged by Superstorm Sandy. When they shut down for repairs the result is “carmageddon” — 25-mile gridlock.

The approach bridge to those tunnels is made of iron and wood, and occasionally catches fire or gets stuck when pivoting open for barge traffic — causing trains to wait for hours. The “Gateway project” for two new tunnels is essential to avoiding economic and environmental chaos, and almost ready for construction. It needs permits and money. Congress has to provide it.

On fixing America’s transportation woes, it’s time to link arms, not use any pretext to oppose this plan.

Philip K. Howard is chairman of the nonpartisan Common Good (commongood.org) reform organization and a New York-based civic leader,  lawyer, author (including the best-selling The Death of Common Sense), and photographer. He's also an old friend, classmate and sometime colleague of New England Diary editor Robert Whitcomb.  This piece first ran in The New York Post.

Philip K. Howard: Repairing Democracy in an age of distrust

Americans now have an historic opportunity to reimagine government. The key is to abandon the centralized operating philosophy which, in thousand-page rulebooks, purports to tell everybody how to do everything. We need to re-empower human agency at all levels of society.

The Trump revolution was not a Republican revolution. It was a revolt against Washington. Voters wanted someone who would shake things up. The new President’s mandate is for change, but what kind of change? The campaign did not exactly illuminate a new vision for how to govern.

Since the election, Republican leaders have pulled off the shelf their standard agenda, including broad de-regulation. But I doubt if disaffected voters are dreaming about fixing Dodd-Frank or corporate taxes. Voters seemed to be lashing out in every direction. Many are upset at stagnant wages and a perception that jobs are disappearing.

 But voters were angry at more than that. They seemed tired of being talked down to by political phonies and know-it-all bureaucrats. They were tired of political correctness and mindless bureaucracy in their schools, hospitals, and workplace. Anger comes from the gut, not the mind. No clear policy agenda emerged from the Trump campaign because the struggle was not about policy. It was about a sense of frustration, alienation, and powerlessness. There can be a kind of wisdom in crowds.

 Democracy can’t earn the allegiance of its citizens with centralized dictates. We need to have our say, and be free to do things in our own way. This crisis of democratic identity can’t be resolved merely with new policies at the top. Top-down government is itself the problem. Americans now have an historic opportunity to reimagine government. The key is to abandon the centralized operating philosophy which, in thousand-page rulebooks, purports to tell everybody how to do everything. Government must still protect against abuse—otherwise freedom will be destroyed by bad actors just as surely as it is by suffocating bureaucracy.

But government can protect freedom by adopting an oversight role that guards against abuses rather than micromanaging daily choices. Communities ought to be able to run schools and provide services in their own way, within broad boundaries. Regulatory dross of all sorts—HIPAA privacy forms, and most warnings and disclaimers—should be revised or scrapped, because they insult our common sense and cumulatively interfere with our ability to focus on what’s important. There are some areas where centralized, detailed regulation is needed—say, pollution discharge limits. But in areas that hinge on human attitudes and competence—say, workplace safety or school discipline—too many rules and protocols are generally counterproductive. Far better for government to stand at a distance, making sure people don’t breach the boundaries of reasonableness.

Guarding outer boundaries is the traditional mechanism of law—acting as a kind of dike against misconduct. Law is vital to freedom because it affirmatively protects an open field of free interaction. Law sets “frontiers, not artificially drawn, within which men should be inviolable,” as Isaiah Berlin put it. Law today doesn’t protect an open field of freedom; it more often strangles daily choices with dictates that make no sense in the circumstances.

Scrapping the micro-regulation model is not a matter of degree—not merely cutting back on red tape. American government requires an historic shift of operating philosophy, one that puts humans back in the driver’s seat. Law must be the framework, but human responsibility must be the activating mechanism. The goal is to liberate people to try to do what’s right and sensible, accountable to those around them.  

So far, so good. But there’s a bone here that will stick in throat of ideologues from both sides. Without a thick rulebook, the official must be free to use his or her best judgment. How else can he use common sense, when applying legal principles to the particular circumstances, to decide when conduct is unfair or unsafe? Oversight for results almost always requires human judgment. The paradox of freedom, forgotten in recent decades, is that empowering citizens requires empowering officials to fulfill their legal responsibilities.

This is not just the Hobbesian requirement of police protection. The interdependence of the modern world puts a huge burden on government oversight. People you don’t know are taking care of your loved ones in schools and nursing homes. How can you influence them if the official in charge is not empowered to act sensibly? The parents’ ideas don’t matter if the principal doesn’t have authority to act on them. The current void of human authority disempowers everyone. People don’t feel they, or anyone around them, can roll up their sleeves and fix things. The answer to every frustration is the same: “The rule made me do it.” (President Obama, explaining why the 2009 stimulus couldn’t be used to fix broken infrastructure: “There’s no such thing as shovel-ready projects.”)

The solution to powerlessness—the only solution—is to re-empower human agency at all levels of society. I’ll assert two first principles that hold the key to remaking a healthy democracy: Principle One: Human choice at implementation is required for accomplishment. Nothing good in the history of mankind was created except when a human, or group of humans, made it happen. Rules, and law in general, can prevent bad things from happening, and can establish protocols for joint action. But even those negative goals cannot be accomplished with a selfexecuting legal structure. Following rules mindlessly crowds out what Michael Polanyi called “tacit knowledge,” the vast store of instincts and know-how that resides in our subconscious.

Most people don’t know and cannot clearly articulate how they get things done. Trial and error—the opposite of compliance—is the secret sauce of progress. No endeavor can succeed, management expert Peter Drucker found, without “a principle of management that will give full scope to individual strength and responsibility.”

Principle Two: Personal ownership of choices is required for self-fulfillment. People want to make a difference. It gives us a sense of self-worth. Doing things in our own way requires freedom to adapt, adjust, and try new things. Being stymied by a rulebook, or trudging all day through compliance checklists, makes people miserable. Anomie, now hardened into anger, comes mainly from a feeling of personal unimportance. People with rote jobs have higher levels of stress and heart disease, while, paradoxically, people with more responsibility and personal risk feel less tension and are healthier.

Tocqueville here as in other areas put his finger on the misery of self-executing systems: “It is especially dangerous to enslave men in the minor details of life. For my own part, I should be inclined to think freedom less necessary in great things than in little ones” because, otherwise, “their spirit is gradually broken…” Humans need to be in charge. Only then can things get done sensibly. Only then does democratic accountability mean anything.

 Today, the FAA certifies new aircraft as “airworthy” based on their expert judgment, not detailed specifications like how many rivets it has. This is not “de-regulation,” but an all too-rare liberation of American common sense inside government. When humans are allowed to take responsibility, law becomes far simpler and more effective. A few legal principles can replace a thousand rules if people are free to take responsibility for implementation. To regulate nursing homes, Australia replaced a thick rulebook with 31 results-oriented principles, such as to have a “home-like setting.” Within a short period nursing homes had improved markedly. Why? Professors John and Valerie Braithwaite found that all stakeholders—nurses, regulators, and families—now focused on making homes better instead of mindless compliance with a thousand input-oriented rules.

Letting humans focus on results would transform every area of public concern. For example, within a year we could get America rebuilding its decrepit infrastructure—just by giving an environmental official the job of deciding when there’s been sufficient environmental review. Today, multi-year environmental reviews obscure, not illuminate, vital issues, and often cause environmental harm by prolonging bottlenecks. Schools and government agencies would have a lot more zip if principals and managers could make basic personnel decisions without having to endure a years-long legal trials to prove that someone doesn’t do the job. Everybody knows who the bad teachers are; site-based oversight committees could guard against vindictive or unwise decisions. Recently Bill Bradley, Mitch Daniels, Tom Kean, and Al Simpson joined with the nonprofit Common Good, which I chair, to launch a campaign (“Who’s in Charge Around Here?”) advocating the radical simplification of government so that people can take charge again.

Human responsibility was, of course, the founding concept of our Republic: Elect and appoint people who have the job of using their best judgment for the common good. James Madison could hardly have been clearer: “It is one of the most prominent features of the Constitution, a principle that pervades the whole system, that there should be the highest possible degree of responsibility in all Executive officers thereof; anything, therefor, which tends to lessen this responsibility is contrary to its spirit and intention.”

Principles-based regulation would actually make law comprehensible to real people—a core tenet of the rule of law ignored by the mandarins in Washington. Again, Madison: “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that the cannot be understood.” Democracy will be revitalized when officials can take responsibility for results. Focusing regulation on goals will also allow people in different communities to do things in different ways. They can take ownership of their choices. As legal philosopher Jeremy Waldron has argued, a principles-based structure offers humans the dignity of being able to argue about right and wrong with a real decision-maker. People won’t feel so powerless any more.

The Wages of Distrust

Distrust is the mortar that keeps the current America governing philosophy firmly in place. Distrust of democracy went into high gear in the 1960s, when we woke up to abuses of racism, pollution, lies about Vietnam, neglect of the disabled, and more. Making law as detailed as possible was the solution chosen to balance against supposedly bad values. There would be no room for abuses of authority if official decisions were prescribed in thick rulebooks. Even some libertarians joined in. They believe in the power of human freedom, of course, but legal control of officials is how they strive to preserve freedom.

Nobel economist Friedrich Hayek, usually a font of wisdom, pronounced in early writings that “government in all its actions . . . [should be] bound by rules announced and fixed beforehand.” It is now received wisdom, among liberal professors as well as industry lobbyists, that laws and regulations should be as detailed as possible. The Volcker Rule is 950 pages of casuistry because lobbyists wrote it that way. Obsessive legal control is a formula not for better freedom, but for mutual powerlessness: The tighter the shackles on the regulator, the tighter the shackles on the regulated. If the nursing home inspector is shackled to a thousand detailed rules, so are the nurses in the nursing home —even if the rules do little or nothing for the quality of the home. Freedom turns out to be a concentric concept. If the traffic cops aren’t free to do their job, then pretty soon you’ll be stuck in gridlock. The citizen’s vote matters only when the President is free to make genuine choices.

John Locke, no fan of centralized authority, concluded that “many things…must necessarily be left to the discretion of him that has executive power in his hands.” The fear that keeps everyone quivering in the legal jungle is also based on a misconception: There’s no need to trust any particular flesh-and-blood official. What’s required is to trust the framework of our republic—to rely on human checks and balances, in which each official is surrounded by other officials who check his fidelity to legal principles.

An official or judge is not, as Justice Benjamin Cardozo put it, “a knight errant roaming at will.” Just as free citizens are not free to breach contracts or cheat others, officials are constrained by their legal mandate. As Ronald Dworkin has put it: “Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction…. An official’s discretion means not that he is free to decide without recourse to standards of sense and fairness.”1 Havel viewed democratic authority as a temporary delegation that “is lost when a person betrays that responsibility.”  

Our paranoia about official authority is ironic. The rule of law famously fosters trust because it gives people confidence that, say, contracts will be honored and abuse not tolerated. What we’ve forgotten is that law itself is tethered to norms of good faith and reasonableness, applied by judges and officials taking responsibility to do justice in the particular case. Hayek himself recanted his views on the “supposed greater certainty [when]…all rules of law have been laid down in written and codified form.”

 Law can only support freedom when a judge or official applies it in a way most people consider reasonable. “Law floats in a sea of ethics,” as Chief Justice Earl Warren put it. Without giving it much thought, Americans generally trust the judges and others who enforce broad principles of civil and criminal law. Government, too, must be tethered to norms of reasonableness. Putting official authority into solitary confinement, hemmed in by impregnable and obsessively detailed law, was supposed to enhance our freedom.

Instead, we locked ourselves in as well. The “simultaneous recession of both freedom and authority in the modern world” is no accident, Hannah Arendt observed. Without a coherent theory of authority, we are “confronted anew…by the elementary problem of human living-together.”

 Rebuilding Trust Through Responsible Choices 

 Here we are in 2016, with half the country in revolt, needing to find a way to live together. We shouldn’t worry too much about abandoning the de facto technocratic regulatory system as it has evolved. Our government “has outgrown the structure, the policies and the rules designed for it,” Peter Drucker observed, with the result that it is “bankrupt, morally as well as financially.” It was an heroic effort but, like central planning, it was doomed to fail because it was built on “the arrogant belief, “as Vaclav Havel put it, “that the world is merely a puzzle to be solved, … a body of information to be fed into a computer in the hope that sooner or later it will spit out a universal solution.”

America requires a new operating philosophy that embraces the unavoidable humanness of governing. Getting past the pervasive distrust is the challenge. Years of public failure and powerlessness feed the distrust. If there were any trusting souls left in America, the 2016 campaign showed that it’s “us versus them.”

 The stakes are high. Trusting cultures tend to prosper, as Francis Fukuyama and others have demonstrated, because people can stride toward their goals without fear of ambush. Shared values of fair dealing and common purpose are reinforced by shared norms of reciprocity; you do your part, others will do theirs. People feel they own their own choices, and feel comfortable with trial and error. Success feeds on itself.

Distrust, by contrast, corrodes the foundations for success. Like acid, it weakens our willingness to move forward because we don’t trust other people to do their part. People become defensive, and tiptoe through the day. Transactions slow to a crawl, or don’t happen at all. In Edward Banfield’s study of a backward village in Italy, pervasive distrust removed the conditions for cooperation. Neighbors could not get together to fix roads and other common resources. The local Mayor refused outside subsidies because, he said, his constituents would assume he would pocket much of it.

 For the past half century, America has looked to law not only to change values, a good thing, but also to dictate daily choices. Now Washington overflows with law, but it is also a cesspool of distrust. As in Banfield’s village, America’s leaders can’t get together to fix broken roads. People in Washington also huddle within defensive bubbles, treating outsiders as enemies. Political leaders from different parties no longer break bread, much less forge deals to move forward. The White House has walled itself off from the Executive Branch it supposedly runs.

Do Americans really differ on basic values of hard work and fair play? I don’t think so. I think government drove us apart, with the best of intentions, by clogging up society with a giant bureaucratic hairball and by removing our ability to try to work things out for ourselves. People don’t want to be trapped in red tape, and they’re obviously sick of political leaders who act like “puppets…in a giant rather inhuman theatre,” as Havel put it.

Rebuilding trust starts at the top: Leaders must make choices that are trustworthy. President Trump will not be reluctant to start making decisions. But his decisions must be viewed as fair and sensible, with due respect for differing interests. Trust is also a two-way street. If Trump empowers others to do things in their own way, they will be more likely to reciprocate. If his decisions are viewed as high-handed, however, we’ll soon fall back into the maw of too much law. This is an historic and perilous moment. Change is overdue. But it’s not the change advocated by either party. The change needed, to liberate American citizens and to fix American government, is to return to our founding philosophy: to honor humans by creating a framework that empowers them to take initiative, act on their beliefs, and make a difference.

Philip K. Howard is chair of Common Good, a nonprofit government- and legal-reform group, and author, most recently, ofThe Rule of Nobody (2014). This piece first ran in The American Interest.