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.
Philip K. Howard: Infrastructure repairs drown in regulatory molasses
To our readers: This column also ran in a pre-renovation version of New England Diary a few weeks ago. As we seek to import the pre-renovation archives, we will rerun particularly important files, such as Philip Howard's piece here.
-- Robert Whitcomb
By PHILIP K. HOWARD
NEW YORK
President Obama went on the stump this summer to promote his "Fix It First" initiative, calling for public appropriations to shore up America's fraying infrastructure. But funding is not the challenge. The main reason crumbling roads, decrepit bridges, antiquated power lines, leaky water mains and muddy harbors don't get fixed is interminable regulatory review.
Infrastructure approvals can take upward of a decade or longer, according to the Regional Plan Association. The environmental review statement for dredging the Savannah River took 14 years to complete. Even projects with little or no environmental impact can take years.
Raising the roadway of the Bayonne Bridge at the mouth of the Port of Newark, for example, requires no new foundations or right of way, and would not require approvals at all except that it spans navigable water. Raising the roadway would allow a new generation of efficient large ships into the port. But the project is now approaching its fifth year of legal process, bogged down in environmental litigation.
Mr. Obama also pitched infrastructure improvements in 2009 while he was promoting his $830 billion stimulus. The bill passed but nothing much happened because, as the administration learned, there is almost no such thing as a "shovel-ready project." So the stimulus money was largely diverted to shoring up state budgets.
Building new infrastructure would enhance U.S. global competitiveness, improve our environmental footprint and, according to McKinsey studies, generate almost two million jobs. But it is impossible to modernize America's physical infrastructure until we modernize our legal infrastructure. Regulatory review is supposed to serve a free society, not paralyze it.
Other developed countries have found a way. Canada requires full environmental review, with state and local input, but it has recently put a maximum of two years on major projects. Germany allocates decision-making authority to a particular state or federal agency: Getting approval for a large electrical platform in the North Sea, built this year, took 20 months; approval for the City Tunnel in Leipzig, scheduled to open next year, took 18 months. Neither country waits for years for a final decision to emerge out of endless red tape.
In America, by contrast, official responsibility is a kind of free-for-all among multiple federal, state and local agencies, with courts called upon to sort it out after everyone else has dropped of exhaustion. The effect is not just delay, but decisions skewed toward the squeaky wheels instead of the common good. This is not how democracy is supposed to work.
America is missing the key element of regulatory finality: No one is in charge of deciding when there has been enough review. Avoiding endless process requires changing the regulatory structure in two ways:
Environmental review today is done by a "lead agency"—such as the Coast Guard in the case of the Bayonne Bridge—that is usually a proponent of a project, and therefore not to be trusted to draw the line. Because it is under legal scrutiny and pressure to prove it took a "hard look," the lead agency's approach has mutated into a process of no pebble left unturned, followed by lawsuits that flyspeck documents that are often thousands of pages long.
What's needed is an independent agency to decide how much environmental review is sufficient. An alteration project like the Bayonne Bridge should probably have an environmental review of a few dozen pages and not, as in that case, more than 5,000 pages. If there were an independent agency with the power to say when enough is enough, then there would be a deliberate decision, not a multiyear ooze of irrelevant facts. Its decision on the scope of review can still be legally challenged as not complying with the basic principles of environmental law. But the challenge should come after, say, one year of review, not 10.
It is also important to change the Balkanized approvals process for other regulations and licenses. These approvals are now spread among federal, state and local agencies like a parody of bureaucracy, with little coordination and frequent duplication of environmental and other requirements. The Cape Wind project off the coast of Massachusetts, now in its 12th year of scrutiny, required review by 17 different agencies. The Gateway West power line, to carry electricity from Wyoming wind farms to the Pacific Northwest, requires the approval of each county in Idaho that the line will traverse. The approval process, begun in 2007, is expected to be complete by 2015. This is paralysis by federalism.
The solution is to create what other countries call "one-stop approvals." Giving one agency the authority to cut through the knot of multiple agencies (including those at state and local levels) will dramatically accelerate approvals.
This is how "greener" countries in Europe make decisions. In Germany, local projects are decided by a local agency (even if there's a national element), and national projects by a national agency (even though there are local concerns). One-stop approval is already in place in the U.S. New interstate gas pipelines are under the exclusive jurisdiction of the Federal Energy Regulatory Commission.
Special interests—especially groups that like the power of being able to stop anything—will foster fears of officials abusing the public trust. Giving people responsibility does not require trust, however. I don't trust anyone. But I can live with a system of democratic responsibility and judicial oversight. What our country can't live with is spinning our wheels in perpetual review. America needs to get moving again.
Philip K. Howard, a lawyer, is chairman of the nonpartisan reform group Common Good. His new book, "The Rule of Nobody," will be published in April by W.W. Norton. He is also the author of, among other works, "The Death of Common Sense''.