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.

Sean Moulton: Speed up government rulemaking

Via OtherWords.org

One of the dirtiest words in politics is “regulation.”

It conjures up images of confusing paperwork, red tape, and obstacles to progress and innovation. However, when it comes to guaranteeing that the water we drink is lead-free, the air we breathe is clean, and that the food we buy at the supermarket won’t cause cancer, people are all for them.

The winds quickly change when you refer to regulations as “protections.”

Regulations, the rules that govern the laws passed by Congress, are necessary. But they present a target-rich environment for corporate and special interests.

Just because a law is passed doesn’t mean it’s going to be enforced. More often, it’s up to various federal agencies to interpret the law and write the rules — that is, the regulations — for its implementation.

This rulemaking process makes it too easy for special interests to twist a good law into something that’s more beneficial for their own interests than American taxpayers. They spend billions of dollars every year to gain access to decision-makers in government in an attempt to influence their policies.

If you want to get the money out of politics, you should also worry about the money inpolicy.

Away from public view, many players take aim at the rules  that agencies make: industry, lobbyists, lawyers, politicians, and even other agencies. Their influence and interference often leads to enormous delays and compromised standards.

For example, it took the EPA more than 10 years — and a court order — to finish rules on mercury emissions from power plants.

It was a rule about mercury. In the air. That people were breathing. If that doesn’t qualify as an urgent issue, what does? Yet it took a decade for the government to get regulations in place.

The process has become cumbersome to the point that you can never know whether agencies will finish making rules that they start — much less ensure that the final rules will match a law’s original intent. Unfortunately, all attempts by Congress to “solve” the rulemaking problem have consisted of provisions that would actually make the current system worse.

One preposterous proposal, put forward by Sen. Rand Paul, actually calls for Congress to have oversight over new rules.

Congress is surely dysfunctional. Even proposals with bipartisan support can inexplicably languish for months on the Hill and die with no action. That’s not where you go to smooth out a rocky process.

The fact is that  “reform” proposals like these aren’t meant to remedy our rulemaking dilemmas. Instead, they’re part of a campaign by powerful interests to make the process even less effective.

What we need is greater transparency and accountability in rulemaking. There should be no secret processes where political pressure can be brought to bear behind closed doors. Any changes made to a federal agency’s rule — whether by the White House, other agencies, or lawmakers — should be done on the public record, with a full explanation of why it was necessary.

Agencies should also have the authority to operate more quickly and decisively based on their expertise, including rejecting proposed changes they believe damage a rule.

As distasteful you may find regulations, we need to speed up the rulemaking process and make it less vulnerable to pressure from outside groups. Without it, our laws will only protect the highest bidders.

Sean Moulton is the Open Government Program Manager at the Project on Government Oversight (POGO.org).