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News and stories from the campaign to reclaim individual responsibility and liberate Americans from bureaucracy and legal fear.

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The U.S. “Is Losing Its Soul”

In a new review of The Rule of Nobody, Jesse Singal of the Boston Globe says that Philip Howard presents a "convincing, provocative argument… Howard’s clear, levelheaded descriptions of how things are done elsewhere…proves his point: We really need to figure out a better way to do operate, lest the country grind to a halt."

Singal writes:

In 2011, writes Philip K. Howard, "firefighters stood on the beach in Alameda, California, and watched a suicidal man flailing in water 150 yards offshore."

None of them moved to rescue the man, because, as a result of budget cuts, they hadn’t been recertified in “land-based water rescues,” and therefore certain “legal liabilit[ies]” could arise. So they watched him struggle for an hour, and then he drowned.

This tragic incident highlights the key points in Howard’s convincing, provocative argument. The United States, he writes, "is losing its soul. Instead of creating legal structures that support our values, Americans are abandoning our values in deference to the bureaucratic structures."

Click here to read the full review.

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Another Bipartisan Call to Reform the Infrastructure Approval Process

Howard's Daily by Philip K. Howard

The chorus grows for basic overhaul of infrastructure approvals. A recent essay by former Sen. Pete Domenici and Jason Grumet, head of the Bipartisan Policy Center, explains that “[o]ur permitting policies are antiquated and poorly matched to our rapidly evolving needs," leading to "train wreck[s]" of endless indecision like the Keystone XL debacle. To have any hope of modernizing our energy production and distribution, we urgently need to rethink the way that we approve infrastructure projects in America.

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“The Rule of Nobody”

Two new pieces look at Philip Howard's new book The Rule of Nobody from fresh angles. First, Kyle Smith in the New York Post writes that "The book is a plea to get things done, and an explanation of why they aren’t." Smith relates an upsetting anecdote from the book:

When the oil rig started leaking mud and gas, the crew should have simply directed the flow over the side. Dumped it in the gulf. That would have been a small oil spill, of course, and no oil spill is a good thing. But in trying to avoid that, the crew caused a gigantic oil spill. Eleven lives were lost. Safety protocol called for the men to aim the flow into a safety gizmo called an oil and gas separator, but that became backed up and made matters worse. Explosive gas filled the air around the rig, which finally exploded. Then some workers who escaped in a raft almost died. Why? They were tied to the burning rig, and regulations forbade them to carry knives so they couldn’t cut themselves free.

Read the article here. Meanwhile, Nick Gillespie of The Daily Beast adds his voice to the conversation around the book:

Philip K. Howard’s important new book… helps to explain why government at all levels not only is on autopilot but on a flight path that can only end in disaster… The Rule of Nobody "envisions a shift in values—away from automatic government and toward a structure that allows humans to make choices needed to adapt to local need and global challenges." Well, here’s hoping.

You can find Gillespie's full review here.

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Civil Service Has Died. Long Live the Merit System.

Howard's Daily by Philip K. Howard

What single reform would most improve government? While there are many candidates—sunset laws and gerrymandering reform come to mind—probably the single most influential change would be to scrap the current civil service system and replace it with a genuine merit system.

Government employees are basically unmanageable. That’s the unavoidable conclusion of a new report by the Partnership for Public Service and Booz Allen. The dry language of the report cannot disguise a reality that would drive any manager to despair. Labyrinthian hiring procedures are "a mystery" that prevent managers from picking people who might do the job, and drive good people away from public service. Rigid policies "encourage long-term tenure" and are "a burden on government that needs to encourage flexibility and innovation." Accountability is nonexistent: "employees and managers view performance management as a paperwork exercise, an annual necessary evil that has little effect on their working lives."

The bottom line is that the civil service system is "increasingly obsolete." "Top performers seldom receive sufficient rewards, poor performers are rarely fired or demoted, and managers are not held accountable … for the outcomes."

Let’s pause for a second here. How government works, as with any enterprise, is largely dependent on the skill, energy, and judgment of its employees. Today, government can’t hire the best people, has little flexibility in managing them, and can’t reward the good ones or punish the bad ones. As a result, the culture in many government offices is dreary and depressed. These are not the conditions for effective government.

Public service should be honored, not treated as a stagnant backwater. That requires public employees to be treated as professionals—given real responsibility (not smothered by dense bureaucracy) and held accountable for their performance. The original idea of the "merit system" (the Pendleton Act of 1883) was that neutral hiring would avoid the abuses of the spoils system, but that public employees would still be accountable for their performance. There was no presumption of tenure. As one of the reform leaders, George William Curtis, put it, "If the front door [is] properly tended, the back door [will] take care of itself."

Fixing civil service is not hard, at least in concept. Give much more flexibility in hiring and management (still avoiding spoils), simplify all the civil service categories, and replace endless litigation over termination with a streamlined "one-stop-shop" oversight process, as recommended by the Partnership for Public Service. 

The challenge is to build public pressure. I think that will require a more detailed expose of the inefficiencies and drudgeries of life inside the beast. Americans can be made to care about this. Over 2 million civilians work for the federal government. Over 20 million work for government at all levels. The federal civil service is a model of efficiency compared with many state and local governments. New York City has over a thousand civil service classifications, encumbered by so many rules and rights that many employees spend more time figuring out what the rules require than doing their jobs. 

To put this opportunity in dollar terms, the total salaries and benefits of federal, state, and local public employees amounts to about $1.5 trillion, requiring on average $15,000 in taxes per American family. If the effectiveness of public employees were improved by 20%, that’s an annual savings (or improved performance) per family of $3,000. 

To put the opportunity in terms of a functioning democracy, just imagine if government attracted some of the best young people, and if mean-spirited or lazy public employees were drummed out, and if most public employees had a sense of personal responsibility and pride.

Democracy requires a genuine merit system, not a stagnant personnel bureaucracy wallowing in rigidities and entitlements.

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How Obsolete Laws Block Infrastructure

Howard's Daily by Philip K. Howard

Urbanist Scott Beyer has a matter-of-fact essay in Atlantic Cities entitled "Seven Reasons U.S. Infrastructure Projects Cost Way More Than They Should." Government-set wages (1931 Davis-Bacon Act), lengthy environmental review, "buy American" laws, and mandatory do-good extras are among the provisions that, cumulatively, can double the costs of a public project.

America’s decrepit infrastructure (it has a D+ rating from the American Society of Civil Engineers) is attributable not mainly to a lack of resources, but to obsolete laws. All these laws hang around America’s neck like so many millstones.

It’s easy to fix. Congress could just pass a law that scrapes away the old requirements. Let the public sector bid out contracts like the private sector does. Give environmental officials authority to approve projects after a year of review, not a decade (as countries like Germany and Canada do).

But Congress treats existing laws like scripture. Congress doesn’t even have the idea that it is responsible for cleaning out obsolete laws. (See here.)

American government needs a spring cleaning. Not just to fix infrastructure, but to fix every program. Not to "de-regulate," but to make regulation practical, effective and in line with current priorities. If Congress won’t do it, then we need to organize a popular movement to force Congress to act. I talk about how to do this in The Rule of Nobody, reviewed in today’s Wall Street Journal.

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Regulatory Reform Requires Tough Balance

According to Paula Dockery, former member of the Florida State Senate, reforming regulation takes more than good intentions:

The low-hanging fruit in regulatory reform are the duplicative, obsolete and unnecessary rules that should be cleaned up periodically.

It's much trickier to tackle the meaningful reform. I did learn that not all businesses really want deregulation, at least not from the rules from which they benefit.

Even seemingly simple things like reducing continuing-education requirements for hair weaving was met with surprising resistance. Trying to allow direct shipment of wine from elsewhere in the U.S. was a battle royale. And my attempt to remove the restriction that beer could only be legally sold in four different size containers brought on the wrath of special interests.

Dockery's recent column in the Florida paper The Ledger argues that regulatory reform is a crucial priority:

In truth, there are a lot of laws, regulations and rules that add cost and waste time. The abundance of rules adds frustration, causes confusion and creates the need to hire lawyers, consultants and accountants to ensure compliance.

But reform demands more than good intentions--it requires a nuanced understanding of what oversight is indispensible and what rules are needlessly burdensome:

It's important to note that rules are necessary to protect consumers, to implement policy, to protect resources and to ensure public health, safety and welfare. There is a delicate balance between what is necessary, and what is excessive, burdensome or intrusive.

Philip Howard stressed a similar point in his recent interview with the Huffington Post:

I think that government oversight is vital in a crowded society to make sure that nursing homes and day care centers are adequate, [along with] other important regulatory goals.

What I criticize is this idea of micro-regulation, where you impose literally thousands of rules onto things like nursing homes. What happens is that they are counterproductive, because the people in the nursing homes spend their time complying with the rules instead of making life nice for the residents.

Read Dockery's full column here.

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Stuart Taylor: “The Rule of Nobody” “Drives Home Large Truths”

In the Wall Street Journal, Stuart Taylor writes that Philip Howard's new book The Rule of Nobody "shows how federal, state and local laws and regulations have programmed officials of both parties to follow rules so detailed, rigid and, often, obsolete as to leave little room for human judgment." Taylor continues: 

Mr. Howard serves up a rich menu of anecdotes, including both the small-scale activities of a neighborhood and the vast administrative structures that govern national life. After a tree fell into a stream and caused flooding during a winter storm, Franklin Township, N.J., was barred from pulling the tree out until it had spent 12 days and $12,000 for the permits and engineering work that a state environmental rule required for altering any natural condition in a "C-1 stream."

Read the full review here.

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Why Washington Is Broken: It’s Run By Dead People

"Words can't create fairness. It's goals and principles and people applying them that creates fairness and adequacy."

That's from Luke Johnson's interview of Philip Howard on the Huffington Post about Howard's forthcoming book The Rule of Nobody. Philip discusses the perils of micro-regulation, obsolete law, and the paralytic government culture of Washington. Here's an excerpt from the interview:

One of the phrases that struck me in the book is that "American Democracy is basically run by dead people." What do you mean by that?

The important decisions made by our government have been preset in legal concrete by statutes and regulations written in past generations and not altered for decades.

Special education, which is a really important law, but has had the unintended consequence of ballooning into about 25 percent of the total K-12 budget. There's none left over for programs for gifted children or pre-K education. Is that the right balance? No one is even asking the question.

It was a statute written in a certain way 40 years ago and that's just the way it works. It's like a runaway train.

You say "No one in Washington is asking what the right thing to do is." What do you mean by that, specifically?

I think Washington has become its own bubble, its own culture, separated by the Beltway from the rest of the country. It's mutated into a perpetual tug of war, where political leaders get up in the morning not trying to do anything constructive but just make the other side look bad.

The other people in Washington, lawyers, lobbyists and journalists, play their role in dealing with this perpetual tug of war, and nothing much happens. It's this paralytic political structure without any significant connection to the real needs of the country. I think it's a profoundly sick and dysfunctional political culture much worse today than it was even 30 years ago.

I don't think the problem is so much bad leadership or even polarized politics. I think those are symptoms of a structural powerlessness, where the combination of the accretion of law, the influence of special interest money, has made it so hard to change a law or to change directions that people have really given up.

Read the full interview on the Huffington Post.

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Scrap Zero Tolerance Rules

Howard’s Daily by Philip K. Howard

A learning environment in schools requires safety and order. "Zero tolerance" rules, which first surfaced in the early 1990's, were intended to guarantee safety. School cultures had corroded in the wake of the "due process revolution," and absolutist rules were intended to shore up principals’ authority to act promptly in the face of violent or anti-social behavior.

But the rigid legal approach exemplified in zero tolerance rules has instead fostered a downward spiral of cynicism and legalisms. The worst offenders still argue over discipline—can you prove it? Meanwhile, every few weeks, there are news reports of children suspended for harmless activities: for example, the first-grader suspended for kissing a girl’s hand, or the seventh-grader suspended because she had "possession" of a pill for one second (before she immediately rejected it), or the honors student expelled because a kitchen knife was in the bed of his pickup truck (it had fallen out while he was helping his grandmother move), or the second-grader suspended because he munched his pop tart into the shape of a gun.

Zero tolerance rules have become a standing joke—a reflection of educators’ lack of authority, not a useful tool of school order.

Now comes the Florida legislature with a bill, sponsored by the National Rifle Association, to supposedly solve the unfairness of rigid zero tolerance rules. Its first flaw is that the bill fights the scourge of "overlegalization" with more legalisms. It requires every school to come up with a detailed code of conduct. Its second flaw is that it is transparently designed to serve the NRA agenda, not the unfairness of rigid rules. Here is an excerpt of the NRA’s mono-minded proposal:

Simulating a firearm or weapon while playing or wearing clothing or accessories that depict a firearm or weapon or express an opinion regarding a right guaranteed by the Second Amendment to the United States Constitution is not grounds for disciplinary action…. Simulating a firearm or weapon while playing includes, but is not limited to:

1. Brandishing a partially consumed pastry or other food item to simulate a firearm or weapon.
2. Possessing a toy firearm or weapon that is 2 inches or less in overall length.
      

I especially like the reference to the Second Amendment—do children worry about a constitutional right to bear arms?

Let’s start again. Fairness almost always requires context. Unilaterally kissing a girl may be excusable in a kindergartner but not in a high school senior. Brandishing a switchblade is different than accidentally leaving a kitchen knife in the bed of a truck. Making a drawing of a gun is different than bringing a gun. That’s why zero tolerance rules are counterproductive, fostering a culture of legal argument instead of being tethered to community norms of right and wrong.

Fairness, in other words, always requires human judgment. Educators must get their authority back. That doesn’t mean they can do anything they want. It is easy to have, say, a teacher-parent committee, or even a student committee, to look at charges of unfair discipline. But only in the most extreme cases should school discipline end up in a legal proceeding. Students are being sent home, not to jail. 

As a first step to a solution, instead of using the silliness of zero tolerance as a vehicle to advance one agenda, it would be more constructive to come up with a model statute that restores common morality to disciplinary decisions. Several years ago, Texas repealed its zero tolerance regime, requiring instead that educators consider factors like a student’s intent when making disciplinary decisions.

Here is my proposed model statute:

"Notwithstanding any rule, including zero tolerance rules, a principal shall have no legal obligation to discipline a student where circumstances are such that the principal believes discipline would be unjust or unfair."

A statute like this would obviate the overreactions to students playing cowboys or soldiers, and also all other rigid overreactions. Bad law should be fixed, not used as a vehicle for self-interested propaganda.

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Notable & Quotable

From The Rule of Nobody (W. W. Norton & Company, April 14, 2014), comes the following excerpt, published in the Wall Street Journal:

The 2009 economic stimulus package promoted by President Obama included $5 billion to weatherize some 607,000 homes—with the goals of both spurring the economy and increasing energy efficiency. But the project was required to comply with a statute called the Davis-Bacon Act (signed into law by President Hoover in 1931), which provides that construction projects with federal funding must pay workers the "prevailing wage"—basically a union perk that costs taxpayers about 20 percent more than actual labor rates. This requirement comes with a mass of red tape; bureaucrats in the Labor Department must set wages, as a matter of law, for each category of construction worker in each of three thou- sand counties in America. There was no schedule for "weatherproofers." So the Labor Department began a slow trudge of determining how much weatherproofers should be paid in Merced County, California; Monmouth County, New Jersey; and several thousand other counties. The stimulus plan had projected that California would weatherproof twenty-five hundred homes per month. At the end of 2009, the actual total was twelve.

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