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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 Cave of Federal Bureaucracy

Howard's Daily by Philip K. Howard

In Plato’s Republic, Socrates tells an allegory in which people imprisoned in a cave see only the flickering shadows of objects, animals, and humans reflected on cave walls. This is their reality. When one prisoner is released, and forced into the daylight of reality, his first instinct is to retreat back into the safety of the cave and its two-dimensional image of reality. When he then accepts the truth and returns to enlighten the other prisoners, they are threatened by the idea that reality is different than the flickering images, and won’t accept the truth when the first prisoner returns. 

Federal bureaucracy is a cave. Its reality consists of flickering images of decades of accumulated rules, often with no line of sight to a real world goal. Those rules require public employees to act in ways that are nonsensical—say, delaying vital infrastructure to study issues that have no conceivable bearing on the project. Rules sometimes trump morality. But rules are the only reality for those within the cave. Secluded in the darkness of federal bureaucracy, that’s all they see.

This metaphor, it turns out, happens to be a literal description of part of federal bureaucracy. An amazing report by David Fahrenthold in the Washington Post, "Sinkhole of bureaucracy," describes a huge cave in Pennsylvania, over 200 feet underground, in which 600 federal employees process retirement pensions of federal employees. In a world where computerized personnel systems are readily available to small businesses, all these government files are processed on paper, by hand. "The employees here pass thousands of case files from cavern to cavern and then key in retirees’ personal data, one line at a time," writes Fahrenthold. "They work underground not for secrecy but for space." The cave contains over 28,000 five-drawer file cabinets.

There have been sporadic efforts to automate the federal retirement system over the past 30 years, but all have failed. The last failed effort cost over $100 million.  

Why can’t government fix itself? The Washington Post report targets two possible villains. The first is ineptitude—over 40% of IT procurement projects end in total failure. The botched rollout of the Affordable Care Act, by the way, falls into the 60% of partially successful projects. The second villain is the accumulation of twisted legal vines, as one interviewee put it, caused by "one hundred years of bad laws." The pension rules are so complex, with so many exceptions, that all efforts to systemize them end up blowing fuses.      

What’s the moral here? Government can’t be repaired unless the legal framework is radically simplified, as I argue in my new book (The Rule of Nobody) (April). Legal accretion guarantees failure. Imagine if you had to manage a business by following every rule or procedure that any prior manager had ever put in place.

Like the prisoners in Socrates’s cave, federal officials accept existing law as a state of nature. They do whatever the flickering complexities tell them to do, whether or not they are sensible. The subculture within the cave is devoted to maintaining the status quo—for example, public employee unions view their job as preserving the myriad perks. As in Socrates’s parable, everyone fears change. 

Solving the problem is not hard, at least not if you have freedom to invent a rational system. Paying pensions to retirees, after all, is not rocket science. What’s needed is to walk out of the cave and face our public challenges anew. It’s hard to find a government program that doesn’t need a fresh makeover. But, as failed efforts to automate pensions show, this is not a simple repair job. We must confront the magnitude of rebuilding the underlying legal structure. Almost nothing about government can get fixed without first leaving the dark bureaucratic cave, and then reconstructing law so that officials are able to meet the challenges of our new century.

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The Danger in Children’s Safety

Howard's Daily by Philip K. Howard

“The Overprotected Kid,” Hanna Rosin’s excellent article on children’s play in The Atlantic, should be required reading for all parents. The starting description of a play area in Wales—where children wallow in mud, try to swing over a creek on a rope (and often fall in), and even start fires to warm themselves—will be a form of shock therapy for parents who have been conditioned to think they would go to jail for permitting any of these activities. 

America’s obsession with safety, as I and others have written, has stunted children’s development. It has made play so boring that American children spend hours on the sofa with their video games, contributing to the crisis of obesity. Hovering parents eliminate the excitement and mental stimulation of children taking responsibility for themselves. 

By overprotecting our children, experts have concluded, we have subjected them to the far greater danger of not being able to cope with the real risks of adulthood. They will grow up to compete with children from other countries who will be more resourceful, and, indeed, if studies are correct, even mentally sharper, than they are. 

Safety is a natural urge. Humans are wired to stay in the safety of a cave if hunger doesn’t drive us out into the daylight and risks of the real world. I debated someone on children’s safety at Yale Law School a couple of years ago who scoffed at the ludicrous suggestion that children should be encouraged to manage risk on their own. 

But safety is only half an idea. The question is what we’re giving up to get it. Wrapping children in bubble wrap will prevent scraped knees and broken legs. But it will also suffocate them. That’s what America is doing to our children. Don’t believe me or even Hanna Rosin. Look at the work of Joe Frost, Stuart Brown of the National Institute for Play, Tim Gill (in the UK), Richard Louv (about children and nature), Darell Hammond of KaBOOM!, and Lenore Skenazy.  

How do we right this ship? In America’s lawsuit-obsessed culture, any accident is sure to result in litigation. Defensive play is standard operating procedure. That’s why some schools ban running at recess, and tag. Dodgeball is almost a capital crime. The cure here is a dramatic shift in law: American courts must bar lawsuits over children’s accidents unless the judge (or an expert panel) decides that the activity or circumstances posed unreasonable dangers. The standard must no longer be avoiding risk—risk is often healthy, and attracts children at the same time as it helps them develop resourcefulness. The correct standard is unreasonable danger. Accidents will happen. That doesn’t mean someone did something wrong.

There’s also a cultural challenge. Parents have no clue anymore what’s right or wrong. Just this week, Darell Hammond and I decided to jointly pursue a project to change public perceptions. The safety police have had the tiller for far too long. It’s time to take it back, for our children’s sake.

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Customer-Friendly Courts

By James Maxeiner

As law reformer Arthur Vanderbilt once reminded us, courts should serve litigants. Now the Upper House of the German legislature (the Bundesrat) has a remarkable proposal for doing just that: conduct and decide cases in English.

The high quality of German civil justice is widely known, but international litigants are often discouraged from conducting litigation in German courts because they don’t speak the language. This draft law would authorize special international panels that would act in English.

The justification accompanying the draft law addresses some important points:

  1. Using English proceedings will make German courts more attractive to international litigants.
  2. Many German judges already have high levels of English proficiency thanks to study abroad.
  3. Appellate panels and even the Supreme Court would be allowed to conduct proceedings for these cases in English.
  4. Since two thirds of Germans know English, these proceedings will still be widely accessible to the public.

This procedural change could indirecly benefit the American civil justice system as well. Were German courts regularly operating in English, the lessons of their successful system would be more visible to American observers.

One lesson we can already take from this reform: Legislatures and courts both can and should make life easier for litigants. Why doesn’t this happen more often in the U.S.?

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Re-Empowering Individual Initiative

Howard's Daily by Philip K. Howard

This is the week of the TED conference in Vancouver. As a former speaker there I’ve gotten to know some amazing participants. What they seem to have in common is self-empowerment. They view themselves as inventors, not only of products but of their own lives and beliefs. TED talks inspire people not only because of the particular topic but because of the demonstration of individual initiative on display.

Individual self-determination is harder to accomplish in the modern world of big business, big government, and bureaucracy everywhere. We have the tools of instant knowledge but fewer obvious ways to act on that knowledge in an individually creative way. Young people come into the job market and find themselves in jobs hemmed in by high walls of established corporate protocols. Retirees can’t find cracks in the bureaucratic walls to make a difference in their communities. They’re not “certified” to teach or provide hospice care. The municipality insurance doesn’t cover volunteers.

This airless, over-organized world can discourage people. Professor Barry Schwartz made the point that a structure can change people. They involuntarily adopt its values. People stop asking what’s right, and just follow rules. They even watch people die because the rule says they should ”get permission” to help rather than acting themselves, as we saw recently in DC.

Arianna Huffington has an inspirational new book, Thrive, which exhorts people to make choices about their personal priorities. Maybe it seems like the world around you demands that you give up your personal life for success, but don’t buy it, she says. Personal fulfillment comes from deliberate choices about what you value. Individual initiative starts are home. She’s right, and her breezy, self-confident sermon about life’s meaning, addressed mainly to women, comes at a time when both men and women are under enormous pressure to sacrifice basic joys and needs to the demands of the workplace.

David Brooks is also on this beat. His sermon, delivered yesterday at TED, suggests that we’ll never get the leadership we need to pull ourselves out of this cultural and bureaucratic rut until we stop listening to the muse of raw ambition and begin listening to our souls about what is right and what is wrong. Only with humility and a sense of uncertainty can we face honestly the imperfect choices needed to move forward responsibly. Here too, the answer lies in self-discovery and a commitment to self-determination.

The problem here is not just that people are discouraged from self-determination. Modern society is organized to avoid human choice. Ever-more-detailed rules are designed to prevent people from acting on their own sense of right and wrong. Leadership might as well be illegal. What does the law allow? A giant bureaucratic blob has paralyzed the halls of power as well as the nooks and crannies of our lives. The solution, as in our personal lives, is to seize back these choices. But reclaiming democratic self-determination is not a matter of personal will, but of an organized movement to rebuild government into a structural framework based on human responsibility. Self-determination is indeed the secret sauce of fulfillment, as Arianna Huffington’s new book makes clear. That truth applies equally to the structures of our democracy.

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The Two-Way Peril of Regulatory Ossification

Howard's Daily by Philip K. Howard

Courtesy of an excellent daily compilation service called Muhr’s Must Reads, I read an essay titled "The Regulatory Confidence Cycle," by Harvard Law Prof. Mark Roe. Professor Roe warns against complacency in thinking that Dodd-Frank has shielded the economy against financial crisis like that in 2008. "Like generals fighting the last war," he warns, the protections of new regulations will not necessarily guard against new crisis.

He’s correct to a point: Regulations by themselves will almost never guard against abuse, any more than an automatic alarm system is foolproof protection against wrongdoers. Effective regulatory oversight always requires vigilance and human judgment. In the mortgage bubble crisis, pretty much everyone was asleep at the switch, relying on triple A ratings and other "objective" indicia of stability when any alert person would see that the loans were garbage. 

But the deeper problem of post-crisis regulation is that it is often counterproductive. Regulations always have unintended consequences. They cost money; they divert compliance and management energy to rote compliance rather than alert oversight. Dodd-Frank is so complex and expensive, industry insiders tell me, that it drives small banks into the arms of larger banks, arguably exacerbating system-wide risks. The real Maginot Line created the harm of complacency; regulatory Maginot Lines can cause failure by forcing people to do things that make no sense. 

The more detailed the regulation (Dodd-Frank is 850 pages; the Volcker Rule is 950 pages), the sooner and more counterproductive the unintended consequences will appear. The goal should be to focus on regulatory goals, not mindless compliance. Regulators and management alike should be always alert to new facts and trends. This is why an ideal regulatory structure, as Bank of England economist Andrew Haldane proposed in his speech "The Dog and the Frisbee," is one that is made up of broad goals and principles, not detailed prescriptions.  

To guard against the next financial crisis, the first task is not to rely upon Dodd-Frank, but to go back and radically simplify it.

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The Human Thing

Howard's Daily by Philip K. Howard

Real people, not rules, get things done. Rules exist to prevent bad conduct (thereby enhancing our freedom). Legal protocols, such as speed limits and contract law, allow people in a crowded society to move around without crashing too much. Organizational systems in companies, hospitals and schools can help mobilize humans to build products and provide services.

But only humans, individual people, make anything happen. Whether a school, hospital or business succeeds always hinges on the commitment, skill and judgment of the people. Government too requires individual initiative.

American history can best be told as a story of individual accomplishment—not just inspirational political leaders, such as Washington or Lincoln, but social leaders such as MLK and, especially, innovators in every aspect of commerce and society—from Fulton to Edison to the Wright brothers to Gates.

Jack Kinzler, longtime head of Technical Services at NASA center in Houston, died this past week at age 94. He famously rigged up telescoping fishing poles to figure how to build a replacement heat shield for the Skylab. He also fabricated the 6-iron which Neil Armstrong took to the moon. Reading the New York Times obituary, you can practically see the twinkle in his eyes when confronted with technical difficulties. Oh, and this legendary NASA genius never attended college.

Modern culture is not friendly to individual initiative. The dramatic exceptions, such as Steve Jobs or others in technology, only prove the rule. Sociologist Robert Bellah and colleagues spotted this trend a few decades ago, when they found that Americans increasingly consider freedom to be the freedom to be left alone, not the freedom to do things. We are free to aspire to flat screen TVs in every room, but not, say, to start a business or to volunteer at the local school.

Like all cultural phenomena, this growing sense of powerlessness has complex roots. One important source, as I write about, is the steady bureaucratization of social activities. The US now ranks 20th in the world in ease of starting a business. Many schools don’t want volunteers—there might be legal liability if something goes wrong. The land of the free has become a legal minefield.

The ultimate symptom of powerlessness is that America has also lost its confidence. We fear people making decisions. What if their judgment is deficient, or biased? We huddle together and move only in unison, shielded from the risk of individual choice by an ever denser legal jungle. This voluntary confinement reflects a fear of human nature, fed by a modern trend of analyzing human judgment as only slightly removed from bestial instincts. But this attitude “sells humanity short,” David Brooks wrote this past week. People grow and mature and develop values that far surpass their primal origins.

All the people we admire, in our history and in our lives, are people who take responsibility for their choices. They are people whose first instinct is to ask, “What is the right thing to do?” and not, “What does the rule require?” Whatever works in any community or business is always the result of individual effort. People of energy and good will wake up in the morning, determined to make a difference.

Many of the problems that cause us to wring our hands—starting with the dysfunction of democracy—can be described as failures of individual initiative. Who’s responsible for the budget deficits? Exactly. Nobody. David Remnick's recent profile of President Obama in the New Yorker reflected a kind a fatalism, that even the President could only respond to the situation presented, with little opportunity to lead us to a new place.

This is perhaps America’s greatest cultural challenge. America needs to believe again in the capacity of individuals to make a difference. If the machinery of democracy is paralyzed, we must rebuild it. If we can’t volunteer in our communities, we need to change the rules. If the culture has stumbled into the quicksand of social distrust, leaders with moral authority must emerge to pull it out. Nothing will fix itself, including America’s insecure culture. Only humans can make things work.

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The Perils of Political Science

Howard's Daily by Philip K. Howard

I always wondered what political scientists did. If you too are curious, read some of the 30 or so essays that the Washington Post has collected for a series on political polarization. With a few exceptions, the ones I read seem to accept the inevitability of democratic dysfunction. Political scientists slice and date the data to explain why polarization is, or is not, a new phenomenon, and similar abstract points.

A post by Stanford political scientist Morris Fiorina is titled "Gridlock is bad. The alternative is worse." The gist is that parties focus on polarized positions (say, Right to Life vs. Right to Choose), which do not reflect the more moderate views of the general electorate. Therefore, he concludes, gridlock is better than action. 

I guess that’s a point. Far more important is this question: Why is it that parties get bogged down in litmus test issues, and never get around to issues vital to the daily functioning of society? However strongly you feel about abortion and gun control, the debate will do nothing to solve deficits, make schools work better, or save fish in the sea. 

I have a different hypothesis than Prof. Fiorina: Modern American politics is an artificial game designed for gridlock. Polarization is a useful tool to excite the extremists. As long as the tug of war continues over divisive ideological issues, party coffers will keep ringing with new campaign money. Prof. Fiorina has no reason to fear action on these issues; that’s the last thing Ted Cruz or Harry Reid wants. Then they would bear responsibility for the consequences. 

The disaster of modern politics is that our leaders are not even debating the real issues: Decaying infrastructure, obsolete entitlements, unmanageable civil service, and a disjointed regulatory system that makes starting a business unimaginable for most people—the US now ranks 20th in the world for "ease of starting a business." These are not ideological issues. That, apparently, is why politicians don’t address them. Who wants to take responsibility for change that, inevitably, some people won’t like? Better to rant and rave over ideological issues where gridlock is virtually guaranteed. 

The genesis of litmus test politics probably lies in a toxic mix of gerrymandering, campaign finance, and reflexive social fears of Big Brother telling us how to live our lives. Whatever the causes, America’s political culture has changed. This isn’t the way the game worked under Howard Baker and Everett Dirksen and Sam Rayburn, but this is the way the game is played today. What’s missing? For starters, there’s no accountability for the growing dysfunction. It’s hard to hold anyone accountable when everyone—public and politicians alike—is trapped in a black hole of ideological stalemate—just turn on Fox News or MSNBC—without a line of sight to a new vision of a functioning democracy. The only people with visions are the loonies on both extremes.  

America shouldn’t fear action. It should fear a political culture designed to divert attention away from practical realities. The solution is a clean break: New leaders who do not get overwhelmed by cynicism, emboldened by a popular movement to fix this broken system, top to bottom. At this point, America has far more to fear from continued paralysis than from action.

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One Clear Advantage of Charter Schools

Mayor de Blasio’s threat to pull public support of charter schools has elicited powerful reactions, none more so than Peggy Noonan’s column this past weekend: "When a school exists for the students, you can tell. When it exists for the unions, you can tell that too."

The controversy centers on whether charter schools should pay rent or no longer be "co-located" within public schools. To review the bidding, charter schools in NY are privately-run schools that receive roughly the same stipend as the public school district spends. Since the public budget calculation excludes the free rent of existing schools (as well as unfunded pension costs), it’s hard to see why charter schools shouldn’t be kept at parity by getting free rent as well. 

De Blasio’s objection to charter schools seems to be that they are "privileged": they receive supplemental outside funding, often from wealthy people, and tend to attract children of parents seeking a more rigorous educational environment. Many charter schools operate longer hours, more days, and with a longer school year. They also are liberated from the constraints imposed by central public bureaucracy and by the teachers’ union. 

The huge advantage of charter schools is that everybody involved—teachers, parents, yes even funders—have a sense of ownership. The operative question, at all times, is this: "What’s the right thing to do?" If something isn’t working, administrators and parents and teachers can get together and talk about how to make things better. If there’s an opportunity, they have the authority—the freedom—to make exceptions.  

This ownership of daily choices brings with it human power exponentially greater than found in most rote organizations. My youngest daughter teaches first grade in a charter school in the middle of Brooklyn. She leaves just after 6 am and doesn’t get home til after 7. She is bursting with stories about her students. Last year most of her first graders, all from the projects, were reading well above grade level.  

Not all charter schools achieve better academic results than public schools, and charters are (appropriately) subject to periodic re-accreditation. But charter schools almost can’t help but be better in instilling social values of right and wrong. Basic values needed to be a good citizen and hold a job are fostered by a school culture run by human values instead of mindless compliance with thick rulebooks.  

It is correct, as Mayor de Blasio surmises, that charter schools therefore enjoy advantages over public schools. People in charter schools are energized about their ownership of daily choices. But is the solution to impose extra financial burdens on them? Dragging the best down is perhaps not the optimum public policy (as in Vonnegut’s short story "Harrison Bergeron," in which the intelligent get zapped whenever their brains start thinking too much). Maybe the correct policy is to reorganize public schools so that they, too, enjoy the freedoms and energy of charter schools. I bet even the union teachers would like it.

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Affordable Health Care Requires a New Legal Framework

Howard's Daily by Philip K. Howard

There are three major structural causes of unaffordable health care in America. One is defensive medicine (3-10% of total costs), caused by unnecessary tests and procedures done in part to help protect doctors from possible lawsuits for not "doing enough." Second is the "fee-for-service" reimbursement system, which incentivizes providers to provide more (not better) care, accounting for an estimated 20 to 30% of extra costs. The third is bureaucracy—a torrent of bureaucracy—that invades every nook and cranny of caregivers’ days, costing twice as much per capita as the next most bureaucratic state, or an extra 15% of the healthcare dollar on excess administration. Doctors spend over 20% of their time on what used to be known as paperwork.

None of these sources of waste is a secret. The drafters of Obamacare tried to deal with aspects of them, as Ezekiel Emanuel recounts in his new book, Reinventing American Health Care. But change is hard. Change scares people. Change disrupts special interests. When things are working really badly, anarchist Peter Kropotkin observed at the turn of the last century, people cling even harder to the status quo, "lest [change] may make him more wretched still."

Change happens, but typically when the old system collapses. Wasting a trillion dollars a year on inefficient health care—that’s about $10,000 per family—will eventually cause the branch to break. So what should the new system look like?   

Solving these problems requires entirely new frameworks. Fee-for-service systems should be replaced by "accountable care organizations," in which a provider takes care of all of a person’s health needs for one annual fee. When a patient needs specialized care, it should be done as "bundled payments," basically a fixed fee for everything to do with that problem.  

Defensive medicine is the area of waste that Common Good is trying to solve. What’s needed is clear: replace unreliable jury-by-jury verdicts (and years-long emotionally-charged proceedings) with expert health courts that reliably sort good care from bad care. Only then can doctors go through the day relying on their best judgment instead of listening to a little lawyer on their shoulders. See here and here

The Obama administration and Dr. Emanuel have been helpful in advancing the cause of reliable healthcare justice; for example, in 2011 Obama presented a budget that included $250 million to help fund medical justice reform initiatives, including special health courts. I met and spoke with Dr. Emanuel several times during his tenure as a key healthcare adviser. 

But Dr. Emanuel is not accurate in suggesting that the Affordable Care Act advances the cause of reliable justice. Yes, early drafts of the Act included provisions for pilot projects of alternative systems of justice. But Senate Majority Leader Harry Reid is a champion of trial lawyers. In the law as enacted, these pilots are permissible only if they "provide[ ] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time."

Keeping the jury, of course, eviscerates the whole idea of consistent decisions. One jury can decide a case one way; another jury on the same facts can decide exactly the opposite way. Most studies suggest that an expert court would be fairer for injured patients as well as more reliable for innocent doctors. But the Affordable Care Act is unwilling to countenance a pilot project that doctors could rely upon.

President Obama’s heart certainly seems to be in the right place on this issue. But it will take more than a suggestion to an obdurate Senate to advance this reform. The public, polls show, overwhelmingly supports special health courts. But no change is likely to happen until there’s firm leadership from the President, or a crisis.

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The Hidden Causes of Bureaucratic Paralysis

Howard's Daily by Philip K. Howard

The Hill newspaper hosted a breakfast forum last week on the state of federal regulation. The panel consisted of former senators Blanche Lincoln (D) and George Allen (R), Susan Dudley at the GW regulatory center, Robert Weissman of Public Citizen, and me. The tone was generally moderate, and everyone seemed to agree that calling for wholesale "deregulation" is not useful. Most regulatory goals are unassailable—say, for worker safety or clean water.

But most agreed that regulation (as it's practiced in the U.S.) is a bureaucratic nightmare, and often ineffective. Some panelists pointed the finger at unaccountable agencies who, year after year, write the regulations. Robert Weissman focused on insufficient enforcement resources. I pointed to overly detailed statutes and regulations which become instantly obsolete when circumstances change. There seemed to be general agreement on the need for a mechanism to revisit old laws to see how they’re working—such as a mandatory "sunset."

So far so good. But then, prompted by a question from the audience, the panel began discussing how regulations should be structured. The senators both felt that laws and regulations should provide "clear metrics" by which the success of the program should be measured. Robert Weissman pointed out, correctly in my view, that many public goals embody moral and qualitative choices not readily quantifiable. What is the metric, say, for a successful special ed program? The number of students helped? What if the quality of the program is lousy? Moreover, anyone familiar with cost-benefit analysis knows how easily the numbers can be fudged. Metrics can be useful as a tool of analysis but not as the sole lodestone of success or failure.

While Robert Weissman did not buy into the notion of clear metrics, he did seem to believe that compliance with rules was a key to regulatory success. He pointed out that in the recent West Virginia chemical spill, the company did not have the required "materials safety data sheet" showing how toxic the chemicals were. But rules are just a rigid metric and often poor substitutes for right and wrong. For example, "MSDS" safety sheets required by worker safety regulations don’t leave room for judgment, so information on highly toxic chemicals is buried in thick notebooks containing sheets describing the perils of "Joy" dishwashing liquid and other benign chemicals. Yes, it would be harmful to chug a jug of Joy, but most workers probably don’t have that urge. Almost no one actually reads the thick notebooks on MSDS sheets. It’s too hard to find any pertinent information. By not leaving room for human judgment to decide which chemicals are likely to cause harm, the rule requiring MSDS sheets is just a version of the boy who cried wolf.

Regulation can be coherent only if humans have room to use their judgment. Safety sheets should be displayed only for chemicals likely to cause harm. Letting people use their judgment doesn’t mean they can do whatever they want. Everyone is still bound to honor the goals and principles, and, if there is a dispute, there’s always a court to complain to. But accepting the role of human judgment opens the door to an open field of common sense instead of a bureaucratic jungle. There’s no need to tangle everyone up in legal vines—the 950 page Volcker Rule comes to mind—if we accept that regulation, like every other life activity, requires human judgment. Bureaucracy could be radically simplified if it focused on goals and guiding principles instead of rigid rules and metrics telling people exactly how to do their jobs.

I had this discussion almost 20 years ago with Joe Dear, the head of OSHA (the worker safety agency) under Clinton. I had been highly critical of OSHA in my book The Death of Common Sense, because studies showed that all its thousands of rules detailing exactly what kind of equipment to use, etc., had done almost no good. How could that be? It seemed that focusing on rule compliance had diverted attention away from the most important factor in safety—a workplace culture valuing safety training and attitudes.

Joe Dear turned out to be a remarkable public servant. He looked like a triathlete, and had an unusual willingness to question bureaucratic assumptions. He started encouraging regional managers to rethink how OSHA did its job. In Maine, OSHA entered into an informal arrangement with large employers to promote safety attitudes in lieu of mindless compliance with all the rules. Once the focus was on how workers did their jobs, instead of handing out fines for, say, having a railing of 38 inches instead of the required 42 inches, the workplaces became safer places. Letting humans use their judgment—both regulator and regulated—proved to be far more effective than focusing on compliance with thousands of rigid rules.

Last week on the Bloomberg ticker the news read that Joe Dear, who had become the Chief Investment Officer of Calpers, had died of cancer at age 62. What a great guy. What America needs, now more than ever, are public servants like Joe who are willing to buck the system by taking responsibility to achieve public goals.

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