Posted 7/28/14 by Philip K. Howard
by Philip K. Howard
Newt Gingrich recently gave a speech at the Heritage Foundation in which he explained why government must be rebuilt, not fixed. The bureaucracy was invented about the same time as the manual typewriter, he explained, and still works in that clunky way. While an ATM machine can reliably distribute money to you and adjust your bank balance instantaneously, it takes the Pentagon 177 days to move a soldier’s health records to the Veterans’ Administration. “Nobody in the current system is allowed to think clearly about the scale of change that would be involved if you use modern technology.”
Government is stuck in paper-based organization. Federal employees’ pensions are processed by hand in a cave in Pennsylvania. Seriously. Permits for new businesses require trudging to a dozen or more different agencies. Matt Yglesias chronicled the mindless procedures required to rent out an apartment in DC. Because of all this clunky bureaucracy, the US now ranks 20th in the world in ease of starting a business.
Efforts to bring modern technology into government almost always fail, however. One study suggested that only 4 % of federal IT projects were successful. Failure is virtually guaranteed for two reasons—first, the goal is almost always to automate the current system, not to rethink the underlying organization; and second, rigid procurement procedures do not permit the vendors to adapt to unforeseen circumstances. The disaster of the Obamacare roll-out—exacerbated by 55 separate vendors –was virtually preordained by a legislative mandate requiring the technology to sort out multiple separate healthcare entitlements for each person.
The point here is not just efficient public administration. It is about historic overhaul. It’s hard to find a government program that isn’t broken—the only question is whether it’s broken 25% or 95%. Government is a huge pile of accumulated compromises and good intentions, implemented with all kinds of god-awful bureaucratic forms and requirements. Who reads all those forms? Should environmental review really take a decade? Should special ed really consume over 25% of the total K-12 budget? Do we need all those tax breaks for corporations? Or farm subsidies from the New Deal?
Newt’s speech is also notable for what it doesn’t say. The enemy in his speech is not government—everyone wants veterans to have health care. Indeed, as I argue in my new book (The Rule of Nobody), most government programs—including environmental review and special ed—are vital to our society. But the ineffectiveness of these programs is impossible to ignore.
Perhaps this is the dawn of a new political narrative. The current fault lines don’t get us anywhere, with Tea Party conservatives attacking the very idea of government, and liberals defending the virtuous aims of government without coming to grips with their pervasive semi-failures.
The new enemy is ossification. Bureaucracy imbeds the status quo in legal concrete. Why doesn’t anything get fixed? Because it’s illegal to act sensibly. Balancing the budget is basically illegal because over half the budget is pre-committed to entitlements that don’t even come up for annual authorization. Rebuilding infrastructure on a timely basis is illegal because of interminable procedures and approvals. That’s why government must be rebuilt to make it work. This is what Jeb Bush is saying on stump—clean out the stables so government can focus on current priorities. Cleaning out decades of accumulated bureaucracy needn’t be a partisan argument. Do liberals really believe in a mindless trudge through endless bureaucracy?
The new aspiration is individual initiative. Liberate humans to roll up their sleeves and get things done. This includes liberating people within government, and rationalizing civil service so they can be held accountable. It shows how far government has degenerated when radical overhaul is required to restore the core assumption of democratic governance: individual responsibility and accountability. As Newt put it: “How do we rethink human activities to maximize the power of the individual and to profoundly replace the current structure?”
Maybe there’s a crack in the door of our dark, acrid political culture.Comment ›
Posted 7/14/14 by Benjamin Miller
by Benjamin Miller
More and more Americans are becoming aware that our political dysfunction stems from structural problems in modern democracy. Jonathan Rauch captured this idea in the 1990s with his superb book Government’s End: Why Washington Stopped Working. Expanding on Mancur Olson’s "collective action" hypothesis, Rauch argues that the accumulation of tightly-focused special interest groups around existing legal and bureaucratic structures creates an institutional inertia that is difficult to counter. This inertia, which he terms "demosclerosis," thwarts the public interest across virtually every area of government:
"Demosclerosis"—government’s progressive loss of the ability to adapt—is a gradual but continuing process. It is not like an acute fever, which attacks in a sudden crisis and galvanizes the immune system to respond with an all-out, decisive counterattack. It is more like hardening of the arteries, which builds up stealthily over many years. Like arteriosclerosis, it can be treated only by a long-term change in behavior: a disciplined regimen of self-reform. Also like arteriosclerosis, demosclerosis gets only worse if it is ignored.
By all appearances, demosclerosis has indeed been ignored. Even Rauch must be surprised by the unprecedented paralysis Washington would suffer two decades later.
Selfish special interests are widely understood to be substantial contributors to this paralysis. What is often overlooked in this assignation of blame, however, is our own participation in the collective-action nightmare. Rauch notes that it is not only corporate lobbyists and unions who may fight for their own interests at the expense of the public good, but that just about every association of citizens plays a part. And each one is likely to blame someone else for the problem:
In Washington you soon discover that everybody is a selfless public servant. Not only does everybody say so, but almost everybody believes it as well. One of the transfer-seeking game’s most wickedly ingenious defenses is that it allows every individual player to think that he is serving the greater good while everyone else is evil. The conceptual breakthrough comes when you realize that the parasite economy doesn’t care whether the people feeding it are vicious opportunists or high-thinking moralists; it thrives just as well either way. In the transfer-seeking game, motive doesn’t matter.
In other words, the road to paralysis is paved with good intentions. Every law and regulation creates new territory for special interests to protect. Even if a good reason originally existed for each one, their combined weight unbalances the scale of the public good. And long after they become obsolete, special interests cling to them, making them practically impossible to remove. Government needs to be able to balance national priorities within the constraints of available resources—a task whose difficulty is proportional to the number and strength of entrenched groups.
Fixing broken government doesn’t mean making government serve one’s own preferred purpose. So long as citizen groups approach reform with that mindset, we will continue amassing law upon law, policy upon policy, each providing some benefit to some small group, and all of them cumulatively preventing sensible long-term political decisions. Rauch identified this trajectory in the 90s; now it has come into full fruition, and it becomes more difficult to challenge day by day.
There is no one answer, no single petition we can sign or bill we can pass that will return our government to functionality. Breaking the paralysis demands a determined, concerted, and above all patient dedication.
Government’s End is a fantastic diagnosis (some might say autopsy) of our national political condition, one whose importance has only grown over the years since its publication. You can purchase it here.Comment ›
Posted 6/30/14 by Philip K. Howard
By Philip K. Howard
Howard Baker had a genius for getting to the nub of things. His question at the Watergate hearings, “What did the President know, and when did he know it?” became the touchstone of those historic proceedings. He didn’t present himself as a genius, of course. He just seemed practical. But when his words came out, in that gentle Tennessee drawl, they invariably re-centered the discussion.
You never felt Howard Baker was making an argument, or debating you. He always seemed to be calling it as he saw it. That’s one of the reasons he had that rare quality—almost impossible to find in Washington nowadays—of moral authority. People trusted him.
He was called the “great conciliator.” I’m not sure I like the description. Yes, he could bring people together. But it was not because he had a knack for splitting the difference, as, say, Henry Clay is remembered. I can’t imagine Howard Baker fashioning the Missouri Compromise. He had more principle than that. He obviously had a gift for seeing the merit of different positions, and was able to bring warring factions together. But in most cases, I suspect, he succeeded not by splitting the difference but by illuminating the merits of different positions.
The obituaries don’t do justice to his personality. Howard Baker was fun. He loved telling stories, especially on himself. Soon after he was nominated to be ambassador to Japan (at age 75), I asked him how it happened that he decided to take the job. He recounted the story: “Well, I was at a dinner with the President, and he said, Howard, I need to you to be ambassador to Japan. Out of the blue. I said OK. When I got home that night, Nancy asked me how the dinner was, and I said it was nice. Also, that the President asked me to be ambassador to Japan. ‘What did you say?’ I said OK. ‘You said OK!!! Anything else?’ Nope. ‘Just OK? We’re going to pack up and move to Japan, and you just say OK?’” Later he recounted the bureaucratic idiocies of having to spend close to $100,000 in legal fees to prepare the ambassador’s financial disclosures (including the number of cattle owned by Nancy), and the hilarity of getting fitted for the required morning suit to meet the Emperor.
Howard Baker loved life. He took his camera everywhere, and took photographs of historic events and natural beauty. He still owes me one. He and I had a shared interest in the history of dirigibles, those giant follies in the sky that floated around the globe in one brief decade of glory. He could shoot the breeze about almost any topic. He never lost the sense of wonder.
Being friends with Howard Baker was life-enhancing. I got to know him almost 25 years ago when we were working on a law case together. He then became a sounding board when I was writing The Death of Common Sense. He opened doors for me (as a civic leader) to see the Postmaster General to try to convince him (amazingly, successfully) to surrender most of the Farley Post Office in NYC so it can be rebuilt as a new Penn Station. He signed up as an early member of the Advisory Board of Common Good. When I asked for help, he always said OK.Comment ›
Posted 6/30/14 by Common Good
By James R. Maxeiner
The press is full of reports that the civil suit by the "Central Park Five" has been settled for $40 million. For readers who are not old enough to remember the original case from 1989, or have not seen Ken Burns’ 2012 documentary film on the case, I recap briefly. In 1989 a young woman was brutally raped in Central Park in New York City. Five innocent black and Hispanic teens were arrested, convicted, and sentenced to long prison terms. Finally, after serving many years in prison, DNA evidence exonerated the five in 2002. In 2003 they sued the City of New York.
Criminal law reformers rightly regard the settlement as an opportunity to revisit deficiencies in criminal law and procedure. These include questionable prosecutorial practices, long prison sentences, and trying juveniles as adults.
Court reformers should regard the settlement as an opportunity to revisit the civil justice system. Most reports fail to observe that the case was filed in 2003--over a decade ago. They assume such delay as a matter of course. New York is reported to have spent over $6 million and 30,000 hours on preparing its defense. The Central Park Five case makes Jarndyce v. Jarndyce in Charles Dickens’ Bleak House look like litigation at lightening speed and modest cost.
How much time should a civil lawsuit take? Not eleven years: not ever! Not a tenth that, the former President of the American Bar Association, David Dudley Field, Jr., told the Bar 125 years ago. Field thought a three-and-one-half year lawsuit (over the estate of presidential candidate Samuel J. Tilden) represented a "scandalous" delay. That is downright fast in Central Park standard time.
How much time should a lawsuit take? Not more than one year, Field eloquently said:
There is no reason in the nature of things why any lawsuit, if the witnesses are within the jurisdiction, should not be determined within a year from its beginning. When a litigation has run through the four seasons, it has run long enough. Twelve months are as long as an American citizen should be obliged to wait for justice, and I think it should be deemed a fundamental precept to all lawgivers and ministers of the law, that the judicial force be so arranged and the methods so contrived that the end of the year from the beginning of the process shall see the end of it.
Presently the American judicial force is not so arranged and its methods are not so contrived as to accomplish such a feat. It is time that they were. Those people who run our courts need to get judges to take responsibility for the cases assigned to them so that those cases are determined in a reasonable time: four seasons.Comment ›
Posted 6/27/14 by Benjamin Miller
by Benjamin Miller
Yesterday the Supreme Court issued a unanimous ruling that President Obama's use of recess appointments to fill executive positions without the approval of Congress violated the Constitution.
Recess appointments are only one weapon in an increasingly utilized arsenal deployed by the President in an effort to sidestep congressional obstruction. Executive orders and federal regulations have also been used more and more frequently to achieve the President's policy objectives without running the congressional gauntlet. At the same time, Speaker John Boehner is threatening a lawsuit against Obama for overreach of executive orders.
In the Fiscal Times, Rob Garver analyzes what this trend indicates about the functionality of the federal government:
These are two sides of the same ugly coin. Congressional Republicans can’t force the President to govern the way they want him to, so they throw as many roadblocks in his way as they possibly can, from creating gridlock to refusing to fill vital government positions.
For his part, Obama can’t force the Congress to legislate the way he wants it to, so he is doing everything in his power to work outside the system, effectively depriving Congress of its rightful role in both legislating and overseeing the executive branch.
Garver goes on to quote Philip Howard, who observes, "The separation of powers is all oatmeal...The executive is writing laws, the Congress is dictating how the branch executive manages federal agencies."
As Graver notes, the result of this war between the executive and legislative branches is a judiciary making policy through court decisions. All three branches are out-of-whack, making it unclear who in government is responsible for what. "What’s going on in Washington," says Philip, "has no relationship to the democracy the framers intended."
This confusion not only diminishes the authority of both the President and Speaker. It also contributes to an atmosphere of impotence. Executive agencies go leaderless. Congress, instead of fulfilling its legislative responsibility, throws wrench after wrench into the executive works. Federal government looks more and more like the rule of nobody.
Garver's full article is well worth a read.Comment ›
Posted 6/23/14 by Common Good
By James R. Maxeiner
Massachusetts Governor Deval Patrick has proposed a ban on non-compete clauses in employment contracts. In Massachusetts, employers have been imposing these clauses not just on senior management and technical experts, but increasingly on lower level employees such as teenage camp counselors and hair-stylists. The clauses prevent workers from taking new jobs--even though employees are sometimes not even aware that they have entered into such an agreement.
The Governor’s proposal implicates three Common Good themes: (1) consistent laws; (2) litigation costs; and (3) laws that don’t micromanage, but facilitate individual responsibility.
Most states deal with employment non-compete clauses using what is called the "rule of reason." Whether a clause is reasonable or not is determined based on precedent, balancing employee interest with employer interest--how the employee’s competition might hurt a legitimate interest of the former employer.
Not all states permit employee non-compete agreements. California prohibits them.
Why? California doesn’t want to keep people from working. If people are unemployed, the state may have to pay them unemployment compensation or welfare.
Backers say that non-compete clauses allow businesses to invest in employees without having to worry that they are training potential competitors. Employees don’t have worry, because the law allows only reasonable restraints. It seems sometimes non-compete agreements make sense and other times they do not. Governor Patrick has suggested the ban might be limited to the technology industry. What should Massachusetts do?
- Consistent laws. No matter what Massachusetts does, the United States will still have a patchwork of laws governing employee non-compete clauses. Today, many jobs, especially in high tech, know no geographic boundaries. Which law governs: a strict California prohibition, a lax Texas or Florida law, or a law somewhere in between? A national solution is needed.
- Litigation costs. The rule of reason is a rough-and-ready rule that may work well enough in theory, but is burdened in real life by a dysfunctional litigation system. There is little that prevents an unreasonable employer from imposing an unreasonable non-compete clause and then threatening to sue a departing employee. Since there is no shifting of litigation costs, even the employee who wins, loses.
- Party responsibility. The rule of reason, at least where an employer is unreasonable, requires that a court decide whether the employer has a legitimate interest. Is there a way to make sure that an employer does not act illegitimately without requiring court intervention? As it is now, the employer has little risk in including a non-compete clause in an employment contract. Buried in fine type, many employees may not even be aware of it. How might the law promote legitimate agreements (knowingly entered into) and discourage illegitimate ones (inadvertently agreed to)? The law could require that a non-compete clause be separately agreed to. That would make sure that the employee knew about it. The law could require that the employer pay the employee half or more of the employee’s salary during the period of non-competition. That would make sure in most cases that the employer has a legitimate interest. It would also provide a measure of equity to the employee.
A national rule for non-compete clauses, subject to loser-pays application, requiring payment during the period of non-competition is no fiction. It is already the law elsewhere. Law can be reasonable.Comment ›
Posted 6/20/14 by Common Good
It doesn't take a Le Cordon Bleu chef to know you ought to cook eggs before serving them, especially in a nursing home. Yet that rule is part of a countless list of regulations governing Kansas nursing homes--rules so detailed and specific that workers are forced to devote most of their time to compliance, rather than actually improving the level of care.
This is just one of many examples of regulatory absurdity discussed in The Rule of Nobody, and it's one that caught the attention of Free-Range Kids founder Lenore Skenazy in an article for the Huffington Post:
This kind of ridiculous regulating pops up in pretty much every public sector. In fact, in my neighborhood, RIGHT NOW, workers outside the apartment building next door are tearing down the beautiful, wrought iron fence that has been there for 60+ years, because the city finally noticed (and cared) that it is 7 inches higher than allowed by local law.
What happens when we pile on laws like this that are excruciatingly precise, but don't make life any better for anyone?
A better approach? Write laws and regulations that set principles and goals, and give people the flexibility to achieve those goals efficiently and sensibly.
Read the rest of Lenore's piece here.Comment ›
The message of The Rule of Nobody--that the accumulation of law and regulation over decades has made government impossible to run--is spreading. On Monday, the Boston Globe's Jeff Jacoby wrote that laws, like credit cards, should have expiration dates:
In the real world, things don’t last forever. The carton of milk in your refrigerator has an expiration date. So does the credit card in your wallet. Cars need periodic tune-ups. Medical prescriptions have to be reauthorized.
Government should operate on the same assumption. Every law should expire automatically after a fixed period of time — say, 12 or 15 years — unless lawmakers expressly vote to reauthorize it. Likewise every legislatively created agency and program. Members of Congress and state legislatures should be required to revisit their handiwork on a regular basis, reviewing it for relevance, efficacy, and soundness, and allowing measures that have outlived their usefulness to lapse.
Philip Howard has proposed a 28th Amendment to do just that:
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.
Read Jacoby's article here.Comment ›
Posted 6/13/14 by Common Good
The national debate around regulation is too often restricted to one dimension: Is it over-reaching or overly lax?
In truth, the broad problem with regulation at all levels of government has less to do with its content than its method. As a rule, U.S. regulations are increasingly minute, narrow, and numerous. One consequence of this approach is that regulatory approval often balloons to absurd proportions, leading to hopelessly delayed projects and enormous expense for no good reason. We've seen this time and again with environmental review for infrastructure projects. Projects with minimal or negligible environmental impact can be caught up in years of investigation, reporting, and litigation, stifling progress and making long-term planning very difficult.
Fortunately, this issue is finally getting some attention in Congress. Senator Angus King (I-ME) recently summed up the idea in testimony at a hearing with the Senate Committee on Homeland Security and Government Affairs:
Regulation is an essential function of our government and is critical to protecting the things our society values, like the environment, public health, and safety. However, I am opposed to senseless regulation--those rules that do not serve a greater public purpose and are burdensome or impede our ability to compete with the rest of the world.
King told the Subcommittee on the Efficiency and Effectiveness of Federal Programs and the Federal Workforce that our current regulatory permitting process is hopelessly protracted and inefficient. Fixing the process is imperative for the sake of American infrastructure and the economy--and, as King says, it doesn't have to come at the expense of environmental protection:
It bears mentioning that tough standards and a timely process need not be at odds with one another. When I was governor of Maine, I used to say that I wanted Maine to have the toughest environmental standards in the country coupled with the country’s most predictable, user-friendly process. A project’s desirability should be based upon its merits, and its viability should not be determined by its opponents’ ability to delay the regulatory process.
The answer is not to weaken regulatory protection, but to clarify and simplify the process. Doing so would promote construction that is both responsible and timely, and it would increase our ability to repair our failing national infrastructure. King's solution:
Can we find a way to permit major projects at a cost that is not extraordinarily prohibitive and within a reasonable time frame without trampling on the legitimate rights of the people impacted? I believe we can. One of the first steps we could take is to address the issue of serial permitting--i.e., the phenomenon of uncoordinated and successive permitting approvals for a single project. When I was governor of Maine, we addressed this problem by creating a system of "one-stop regulatory shopping," which put the responsibility of issuing the final permit within one agency and required all the other agencies to coordinate and consult with the lead agency.
I believe a similar process could work at the federal level, and two members of this subcommittee, Senator Portman and Senator McCaskill, have introduced a bill that takes this very approach. The bill--S. 1397, the Federal Permitting Improvement Act of 2013--would institute some important changes to federal permitting procedures, and I am proud to announce my co-sponsorship of the bill today.