by James R. Maxeiner
Philip K. Howard isn’t alone in proposing amendments to the United States Constitution. Shortly following the publication of The Rule of Nobody, which includes five proposed amendments constituting a "Bill of Responsibilities," one retired Supreme Court justice (John Paul Stevens) and two sitting Supreme Courts justices (Antonin Scalia and Ruth Bader Ginsburg) themselves called for amending the Constitution. Justice Stevens proposes six amendments in a new book, Six Amendments: How and Why We Should Change the Constitution (April 22). The two sitting justices made their proposals in a public conversation at the National Press Club on April 17.
The U.S. Constitution is more difficult to amend than most. But Philip and the three Supreme Court Justices see what Thomas Jefferson saw. No sooner had he finished writing the Declaration of Independence than he turned to a complete "revisal" of Virginia laws. Inscribed on the Jefferson Memorial in Washington are his words: "laws and institutions must go hand in hand with the progress of the human mind. [They must] keep pace with the times."
One way for law to keep pace with changing times can be common law case development—judges determine appropriate and sensible procedures over time. But even the most fervent of believers in common law case development recognize that there are limits to its capabilities. Serious structural reforms are sometimes needed—and such reforms demand constitutional amendments. Common law judges do not have political legitimacy or the knowledge needed to rearrange government or to prescribe rules for governing well.
The amendments proposed by Philip and the Justices share a common theme of promoting functional government. Philip’s "Bill of Responsibilities" aims at restoring judgment and common sense to government roles. Four of Justice Stevens’s six proposals address government mechanics (like gerrymandering and campaign finance). Justice Scalia has the simplest and perhaps most direct proposal of them all in the end: amending the Constitution’s process for making amendments.
In this, the Constitution’s 225th year, amending it is a good idea whose time has come.Comment ›
Posted 5/8/14 by Philip K. Howard
Howard's Daily by Philip K. Howard
Last week George Will wrote a powerful column on how "The Heavy Hand of the IRS Seizes Innocent Americans’ Assets." The episode involved an immigrant who owned a grocery store in Fraser, Michigan. Because about a third of its sales are in cash, the owner regularly deposited cash in a bank across the street. There is an anti-money laundering law, aimed at drug dealers, which requires banks to report cash deposits of more than $10,000, and also prohibits people from structuring deposits to avoid the law. The grocery store had been audited by the IRS several times in recent years, without any finding of suspicious activity. Last year, under broad power to catch criminals, the IRS without notice seized the grocery store’s bank account.
The story, most would agree, is an outrage. What went wrong here? George Will attacks both the law—the "guilty-until-proven-innocent" forfeiture power—and the IRS agents who decided that a grocery store making regular cash deposits was a criminal enterprise. However much Americans distrust government, Will concludes, that "distrust of government is insufficient."
Let’s unpack the story, and see if there is a moral for how government should work. I’m not an expert on money laundering, but can readily imagine why in certain circumstances the government should be able to freeze assets. Otherwise, with the press of a button, criminal resources can be transferred out of the country.
But that’s obviously not the situation here: the supposed vehicle for crime, a local grocery store, is going nowhere. It is perpetually receiving cash for cans of Coke and quarts of milk. The IRS had no need to seize deposits in order to avoid the owner fleeing the jurisdiction with ill-gotten gains.
The main thing that went wrong here is a failure of human judgment. The IRS agents abused their power. What’s the solution? In any sensibly-organized democratic structure, after an investigation, the responsible IRS officials should be sanctioned or fired.
But civil servants can’t be held accountable. The so-called "merit system" has evolved to become an "anti-merit system." Public employees can’t be fired, or even sanctioned, without years of legal proceedings. I don’t think I’ve ever heard of a civil servant losing his job because he abused his power over citizens. It may be that the forfeiture law needs to include a stronger principle that it should be used only when there is reason to believe that targets and their assets will flee the jurisdiction. But that principle still requires human judgment. No set of words in law can ever remove the need for humans to act appropriately.
Personal accountability should be the operating mechanism for any organization. Without it, culture soon degrades. Government today is a tangled jungle of incoherent law and regulation because we look to words, rather than personal responsibility, as the way of safeguarding against error. My conclusion is this: the main flaw in modern government is not that officials have too much power, but that they can’t be accountable when they abuse it.Comment ›
Posted 5/7/14 by Philip K. Howard
An excerpt from The Rule of Nobody by Philip K. Howard.
There have been twenty-seven amendments to the Constitution. The most recent, the Twenty-Seventh Amendment, proposed in 1789 and ratified in 1992, prohibits changing congressional pay raises from taking effect until "an election of representatives shall have intervened." One has been repealed (the Eighteenth Amendment, which prohibited the sale of alcoholic beverages, was repealed by the Twenty-First Amendment).
Under Article V of the Constitution, the process for amending the Constitution basically requires two steps: First, the amendment must be proposed either by a two-thirds vote of each house of Congress, or by a constitutional convention called by legislatures of two-thirds of the states. Second, the amendment must be ratified either, at the choice of Congress, by legislatures of three-fourths of the states or by constitutional conventions in three-fourths of the states.
To the existing twenty-seven amendments, I propose adding five new amendments that would become the Bill of Responsibilities. These amendments could be acted upon together or separately.
1. The Twenty-Eighth Amendment would impose a mandatory sunset so that all laws and programs with budgetary impact would automatically expire every fifteen years, and could not be reenacted without new findings and a report from an independent commission. This amendment would not generally apply to criminal laws, for example, but would encompass most regulatory and social welfare programs. This amendment also would give Congress the authority to invalidate regulations that were promulgated pursuant to a legislative mandate—in effect, putting Congress on an equal footing with the executive branch, which currently has unilateral authority, subject to judicial review, to repeal regulations:
Amendment XXVIII: No statute or regulation requiring expenditure of public or private resources (other than to oversee legal compliance or enforcement), shall be in force for longer than fifteen years. Congress may reenact such a law only after finding that it continues to serve the public interest and does not unnecessarily conflict or interfere with other priorities. Before making its determinations, Congress shall consider recommendations by an independent commission on whether and how to amend any such statute or program. At any time, Congress by majority vote of each house shall have the power to invalidate any regulation promulgated under a statutory delegation, without presentment to the President.
2. The Twenty-Ninth Amendment would restore to the President authority to manage the executive branch more actively by issuing executive orders, subject to congressional override, to reorganize agencies, veto specific items in proposed budgets, and impound money to avoid waste. Today the executive branch is mired in obsolete congressional mandates, maintained by congressional inertia rather than deliberate choices. This amendment would give the President authority to push back while still leaving the ultimate judgment with Congress:
Amendment XXIX: By executive order, subject to being overridden by majority vote in each house, the President may: reorganize executive agencies and departments; veto line items in proposed budgets; refuse to spend budgeted funds for any program in order to avoid waste or inefficiency; and undertake to accomplish statutory goals, consistent with statutory principles, by means other than those set forth in the statute or implementing regulations.
3. The Thirtieth Amendment would restore to the President authority to manage and terminate government personnel, subject only to budgetary guidelines and a neutral hiring protocol to avoid handing out jobs as “spoils.” This amendment is intended to return civil service to its roots as a “merit system,” not a sinecure of permanent employment. It is not possible to restore responsibility to government, giving officials flexibility to act sensibly and morally, unless they can be accountable. Historians of public service believe that modern civil service is neither effective nor responsive—an unrecognizable mutation of the original progressive vision for good government. Ossified civil service has become a symbol of bad government, and must be abandoned:
Amendment XXX: The President shall have authority over personnel decisions in the executive branch, including authority to terminate public employees, within budgetary guidelines and neutral hiring protocols established by Congress.
4. The Thirty-First Amendment would restore reliability to American civil justice by requiring judges to safeguard reasonable boundaries of who can sue for what. Lawsuits today are a tool for extortion and delay, with corrosive effects on free interaction throughout society. The first principle of fair justice is that like cases should be decided alike. That core precept requires judges to assert values of reasonableness, as a matter of law, to bring consistency to what has become a legal casino:
Amendment XXXI: Notwithstanding the provisions of the Seventh Amendment and any state law or constitution, in lawsuits that may impede the conduct of government, or that may diminish general freedoms of persons in society, judges shall make rulings of law drawing boundaries of reasonable claims and defenses, and dismiss claims and defenses falling outside those boundaries. No person shall be required to respond to any lawsuit unless a judge shall determine that the claims are reasonable and there are reasonable allegations to support them against each person.
5. The Thirty-Second Amendment would create an independent Council of Citizens to evaluate and issue reports on the workings of government. Government has acquired a life of its own, disconnected from the needs of society, but there is little focused objection because government maintains a monopoly on public discourse. This advisory council would be a locus of moral authority, untarnished by political ambition or monetary self-interest. Democracy needs citizen supervision:
Amendment XXXII: A Council of Citizens shall be established as an advisory oversight body on the workings of government. The council shall consist of nine members, Appendix: Bill of Responsibilities 183 chosen by and from a Nominating Council composed of two nominees by each governor of a state. The members shall each have a term of five years, and may be renominated and chosen to serve additional terms. The council shall have no mandatory duties other than to nominate independent commissions to advise Congress on the rewriting of laws. Congress shall provide funding adequate to support staff and shall provide an honorarium to each member of the council in an amount equal to the salary of a member of Congress.
More excerpts from The Rule of Nobody are available here.Comment ›
Posted 5/2/14 by Philip K. Howard
A retroactive raise is what made the headlines of the proposed new NYC teachers’ contract. But the exciting breakthrough is the potential for abandoning the bureaucratic swamp that has made it impossible to fix NYC schools.
Some school reformers will be excited that it will be easier to get rid of poor performers—requiring, according to news reports, poor evaluations in two separate schools. This is indeed important. It is impossible to build and maintain a culture of excellence when poor performers are in the classroom next door. One bad apple, studies show, can spoil the barrel.
But the revelation of the new deal is the idea of mutual bureaucratic disarmament. For decades, the City and the union have done battle by imposing on each other more rules and requirements—for example, detailed requirements, sometimes minute by minute, on how a teacher must deliver a lesson plan, and requirements on exactly how many minutes per month a teacher has to listen to a principal.
A study by Common Good a few years ago found that there were so many rules for NYC schools that no one had collected them in one place. Even the more rudimentary choices—say, removing a disruptive student from a classroom—are subject to dozens of rules and procedures that effectively remove a teacher’s authority to maintain order. Common Good constructed bubble charts of steps and procedures for basic choices that were five feet long.
All this bureaucracy makes schools unmanageable. But it also does something far worse. Bureaucracy kills the human spirit. It’s that simple. A teacher who is forced to trudge through mindless protocols cannot possibly be enthusiastic. Inspiring students is impossible when the teacher is forced to act like a bureaucratic robot.
The myth of bureaucracy is that it makes sure things are done properly. But people can only think of one thing at once. Focus on A, as sociologist Robert K. Merton put it, and you cannot see B. Forcing teachers (and principals, and students) to focus on thick rulebooks just snuffs out the candle of human inspiration. What kind of role models are teachers who are forced to act like robots instead of moral models of maturity and fairness?
For decades leaders in schools have been stuck in a downward spiral of bureaucratic warfare. Good principals succeeded by ignoring the rules. New NYC Schools Chancellor Carmen Farina famously built a culture of excellence at PS 6 by, among other things, ignoring the bureaucracy. (I profiled her in my book The Collapse of the Common Good.) Union leader Michael Mulgrew is not one to give an inch, but in many different settings, in conversations with me and others, he too has highlighted how bureaucracy had become the worst enemy of teachers.
The devil of every deal is in the details. But extra money to teachers is a bargain if New York City can unleash human energy and enthusiasm in its schools. Bureaucracy can’t teach.Comment ›
Posted 4/18/14 by Common Good
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."
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.Comment ›
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.Comment ›
Posted 4/10/14 by Common Good
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.Comment ›
Posted 4/9/14 by Common Good
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.Comment ›
Posted 4/8/14 by Philip K. Howard
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.Comment ›
Posted 4/7/14 by Common Good
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.Comment ›