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

Blog — Op-Ed

The Flaw of Regulatory Perfection

Howard's Daily by Philip K. Howard

There’s a wide chasm between those who write regulations and the humans expected to abide by them. Real people don’t have the capacity or time to understand, much less comply with, scores of regulations. This is a reason why regulation so often is counterproductive. People preoccupied with rule compliance no longer act sensibly. Focus on A, as sociologist Robert K. Merton put it, and you cannot see B.

Healthcare delivery in America has been suffocated by bureaucracy. How this affects the daily choices of physicians is described by Victoria McEvoy from Harvard Medical School in today’s Wall Street Journal. Regulations presume to guarantee proper care by forcing doctors to go down checklists of every possible treatment associated with, say, an obese child. The problem, of course, is that all this time checking boxes "takes precious time away from doctor-patient communication. Not one of my patients has lost a pound from my box checking."

Like marionettes in a dystopic puppet show, all day long physicians are jerked away from sensible patient care by regulatory mandates written without any concern for human bandwidth. But doctors aren’t computers. Sometimes the box needs to be checked—did the surgeon double-check all requirements?—but most regulatory requirements are in service of a form of central planning, as often requiring useless activities as those that make sense.    

Follow all these rules, regulators think, and health care will be perfect. But regulations can’t honor the complexity of the actual patient situation that the doctor is facing. So, when "one metric is off," regulations compel doctors to take certain actions, even where those actions make no sense.    

The fee-for-service reimbursement bureaucracy multiplies the box-checking and skewing of sensible judgment (doctors spend 30% of their time on paperwork). Regulatory overload in health care causes various forms of failure—unnecessary cost, grotesque inefficiency, corrosion of professional judgment, and a palpable degradation of professional spirit.   

Then pile on top of this the ability of any sick person to bring a lawsuit against a doctor in almost any amount, without any reliable decision maker, and—voila—you have the world’s most expensive healthcare system, by almost a factor of two, and perhaps the most dispirited medical professionals in the developed world.  

The solution is not getting rid of regulatory oversight, but re-humanizing it. Box checking should be restricted to high-risk activities. Ideas for dealing with this or that disease should be placed in a reference manual as guides, not as a mandatory compliance regime. Accountability should be determined after the fact, by periodic reviews based on the judgment of professionals who understand the complexities, not by rigid metrics.   

The quest for regulatory perfection, like the quest for legal certainty, does not avoid failure, but causes failure.

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Feckless Democracy

Howard's Daily by Philip K. Howard

For those who enjoy clinical dissection of America’s democratic dysfunction, the sharp scalpel of Ruth Marcus at the Washington Post today lays out the putrid parts piece by piece.

Basically, Congress just abandoned one isolated act of fiscal cost-cutting—trimming cost-of-living increases for working-age veterans by a tiny fraction—because the veterans’ lobby doesn’t like it. The necessary consequence, as four retired officers noted in a report from the Bipartisan Policy Center, is to "crowd out other important [defense] investments that support training, readiness and modernization."

Democracy has become a one-way ratchet. It can add new programs and benefits, but never take them away. Last week we saw Congress continuing New Deal-era farm subsidies, this week we see Congress sprinting away with its tail between its legs after putting its toe in the water of fiscal responsibility, because of easy arguments available to any special interest. Are you against veterans? Are you against farmers?

The unavoidable truth is that Congress is against America’s future. Taking responsibility to set priorities, make tough choices, even to make easy choices (subsidizing corporate farmers?), is its worst nightmare.

Debate should shift away from arguments over policy and priorities—responsible choices are obviously hopeless with this political gang. We should focus instead on institutional design. Congress is broken. Most programs, to varying degrees, are obsolete and wasteful. America needs to rethink how democracy works. What structure will compel Congress to set new priorities? What authority does the executive need to adapt to changing circumstances? How can America introduce the fresh air of public wisdom into the self-contained bubble of Washington? The situation is not sustainable.

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Clashing Currents of Political Philosophy

Howard’s Daily by Philip K. Howard

Michael Gerson’s column today is the latest in a series of thoughtful essays on the meaning of conservatism prompted by Yuval Levin’s book The Great Debate, comparing the philosophies of Edmund Burke and Thomas Paine.

Burke believed in organic change, working with society as he found it. Paine wanted to rebuild it from the ground up, on rationalist enlightenment principles. Burke believed in family and community and the authority of social norms—certainly harmonious with certain modern conservative principles. Paine’s vision was one of radical individualism—not far from the Tea Party’s demand for deregulation. 

I am much more sympathetic to Burke’s vision, like most commentators. Tocqueville too warned against atomistic individualism (see Patrick Deneen’s excellent essay here). Burke’s warning against Paine’s utopian remake of society soon became real in the horrors of the French Revolution.

But there’s a second level conflict within conservative ideology: It’s impossible to achieve anything like Burke’s organic vision by using Burke’s organic methods. Modern government is structurally paralyzed. Bureaucracy is everywhere. No human has authority to make any judgment. Being practical, using common sense, acting on norms of right and wrong—all these choices are basically illegal.

The modern state is organized to avoid human choice. This too flows from philosophical premises, as I write elsewhere. Conservatives want to put officials in rigid legal shackles. Liberals want to put business in legal shackles. That’s why, as I wrote yesterday, we get thousand-page laws. Without the authority of humans to make choices it’s impossible to embrace Burke’s vision of an organic society.  

Incremental reform won’t work. That’s what Obama tried to do—bringing in the brilliant and enlightened Cass Sunstein to head the effort. But you can’t prune a jungle. There is a flaw in the premise—democracy is not supposed to be a jungle, but a governing process grounded in human responsibility and accountability. Mindless compliance with a bureaucratic instruction manual is not what our founders had in mind. 

The ultimate paradox is this: To achieve anything like Burke’s organic vision of organic state, we must embrace a Paine-sian approach to starting anew. The new vision is relatively easy to come up with. For example, streamlining environmental review—so that projects get approved in 18 months instead of (sometimes) 18 years—mainly requires giving an EPA official the authority to decide when there’s been enough review. (Common Good is building a coalition to try to achieve this. See here.)

Sometimes it seems to me that, on balance, philosophy causes more mischief than good. The human instinct towards rationalization and systems undervalues life’s complexity and nuance. Certainly the quest for certainty, both in philosophy and law, offers ample evidence of philosophical failures. But humans have a need for philosophy, so embracing the humanistic, organic philosophy of Aristotle, Burke, Tocqueville, Berlin, Havel, and many others is where I think individual and social fulfillment can be found. Ultimately, what matters is what works.

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The Perils of Legal Certainty

Howard's Daily by Philip K. Howard

You will profit by reading philosopher Simon Critchley’s recent reflection on Dr. Jacob Bronowski and the dangers of certainty. People who think they possess a final truth, driven compulsively towards their view of certainty, often cause evil, whether they're religious fanatics like Savonarola or, as Bronowski discusses, the officials who devised the Final Solution.

A responsible human must look life in the eye, open to the moral and factual uncertainties presented by many choices in human dealings. Critchley: "There is no God’s eye view, Dr. Bronowski insisted, and the people who claim that there is and that they possess it are not just wrong, they are morally pernicious. Errors are inextricably bound up with pursuit of human knowledge, which requires not just mathematical calculation but insight, interpretation and a personal act of judgment for which we are responsible."

Applying this principle of human responsibility for moral choices has applications throughout the range of human endeavor. (See this thoughtful essay by Roger Berkowitz of the Hannah Arendt Center at Bard College). Let’s look at law for a minute.

Legal certainty is accepted orthodoxy. Of course law should be certain, we have been taught. Only then will people know what’s expected of them, and not be fearful of arbitrary officials. In pursuit of certainty, laws have become ever more detailed. The new Volcker Rule regulating proprietary trading by banks is almost 1,000 pages long. The Affordable Care Act is almost 3,000 pages long. Nursing homes are typically regulated by 1,000 rules. In total, there are over 100 million words of binding federal law, and several billion words of state and local law. 

Do all these detailed dictates achieve certainty? Of course not. Law is an unknowable jungle. Does all this law safeguard us against arbitrary officials? No, it’s a legal minefield. No one can comply with it all. We’re at the mercy of the state. Does all this detailed law make government a well-oiled, smoothly-running machine? HELP!! There’s hardly any program, even the best of them, that doesn’t waste vast resources in bureaucratic nonsense.

Public solvency is basically illegal in America. All this detailed law prevents the president, and any governor, from making the choices needed for fiscal responsibility. 

Our obsessive quest for legal certainty has left our society, ironically, in a very uncertain state. The only cure is to abandon legal certainty and embrace human responsibility as the operating philosophy for most activities of government. 

Canadian management theorist Brenda Zimmerman makes the distinction between activities that are "complicated"—like engineering, or rocket launches, or surgery—and activities that are "complex"—such as raising a child, or running a healthcare system. Complicated activities profit from detailed rules, checklists, and protocols. Complex activities require balance, and tradeoffs, and moral choices. Detailed rules cause failure.

Law can support a free society, I argue in my new book (April), only when it abandons this obsessive quest for certainty. Law should instead set goals and principled boundaries, leaving room for humans to make practical and moral choices. Real people, not rules, make things happen. Automatic government is a false philosophy. Democracy is supposed to elect people to act on their vales, not to avoid them by mindlessly applying detailed rules. Of course people will sometimes abuse this trust. Look at the George Washington Bridge lane-closings. But officials there are paying the price. The worst system is one where things fail, and there’s no one to hold accountable. That’s what we have today: The Rule of Nobody. As Jacob Bronowski passionately explained, avoiding human responsibility is the root of much evil.

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Let Kids Play

Howard's Daily by Philip K. Howard

Notions of "appropriate" play are thrown out the window in this amazing video footage from New Zealand. Kids run around, tackle each other in a game called "bullrush," ride scooters over ramps, climb trees, and—gasp—point sticks like guns. Then they go back to class where, the principal says, they are able to focus on schoolwork. (Thanks to David Webb for finding this video.)

In America, by contrast, schools ban games like tag, or even running at recess. So it’s hardly surprising that there’s an epidemic of ADD. Playgrounds are stripped of any implements that might involve risk—such as merry-go-rounds and jungle gyms. Small wonder there’s a crisis of obesity when it’s more challenging to play video games on the sofa than to go to a playground with no challenge at all.  

Child development experts repeatedly say that it is vital for children, for mental as well as physical development, to deal with normal risks of childhood. (I compiled much of this material in "The Freedom To Take Risks" chapter in Life Without Lawyers.) Coddling children makes them less safe in the long run, because they will be less able to deal with real risks later in life. As the New Zealand principal points out, learning how to handle risk early on makes a young student less likely to take too much risk when he gets a driver’s license.

Letting kids in America play again requires an organized effort. Today, the most innocent accident can mean an expensive lawsuit. That’s why the school board in Broward County, Florida banned running at recess. And, worse, American culture has changed. Parents and educators no longer have an instinct for what's an appropriate risk. Avoiding risk has become an obsession. Safety is only half an idea; the question is what we’re giving up to get it. If children are raised without skills to cope with life, we are increasing risk, not reducing it.

Perhaps what’s needed is a presidential commission on the appropriate risks of childhood. By restating common sense principles, America could then empower judges (as well as parents) to affirmatively embrace healthy risks so that kids can, well, go back to being kids again.

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Want Jobs (and a Green Infrastructure)?

Howard's Daily by Philip K. Howard

Rebuilding America’s infrastructure, as President Obama emphasizes, is a top national priority. The benefits include several million jobs, enhanced competitiveness, and a greener footprint. But it can’t happen, as I and others have written, until America fixes its broken legal approval process. Approvals drag on for years, sometimes decades. 

This past week, another lawsuit was filed to try to stop a project to raise the roadway of the Bayonne Bridge. The project has undeniable environmental and economic benefits—allowing a new generation of cleaner, more efficient post-Panamax ships access to Newark Harbor. (See Sam Roberts’ "High Above the Water, but Awash in Red Tape.")

Nor does the project involve any of the usual new infrastructure dislocation—the bridge’s foundations are untouched, and rights of way remain in the same place. The roadway is simply being raised within the existing bridge arch. 

But the project does involve construction, and a Staten Island group has sued alleging civil rights violations because their neighborhood, six blocks away, will have to deal with whatever effects there may be from increased construction activities. (See "Staten Islanders File Civil Rights Complaint Against Bayonne Bridge Project.") Lawsuits like these are a formula for social paralysis.

On Tuesday the lead story of The Times of London described a proposal to minimize similar NIMBY lawsuits which have also stalled large projects in Britain. The government proposal would create a special court to hear complaints on an expedited basis. The proposal would also apparently limit "standing" to sue to people or groups who have a financial interest being affected.

Similar ideas were suggested at a recent forum on redesigning infrastructure approval co-hosted by Common Good and the Regional Plan Association. Instead of drawn out court proceedings, why not give an official at EPA authority to decide when there’s been enough review? Why not limit lawsuits to substantive violations of law, not second-guessing policy decisions? These are not generally legal decisions, but ones that should be accountable politically. Special courts, with expedited proceedings, also seem like a good idea. Legal paralysis is not a formula for a healthy society. America needs to get moving.

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The Bureaucratic Canary Is a Person

Howard's Daily by Philip K. Howard

"Andrea Rediske’s 11-year-old son Ethan, is dying. Last year, Ethan, who was born with brain damage, has cerebral palsy and is blind, was forced to take a version of the Florida Comprehensive Assessment Test…. Now his mom has to prove that Ethan, now in a morphine coma, is in no condition to take another test this year." This is the lead in a blog entry from yesterday by the Washington Post’s Valerie Strauss.

The federal special education law known today as IDEA was enacted in 1975 to remedy the abuses of special needs children locked up in cruel institutions like Willowbrook. But laws tend to take a life of their own, and the broad legal mandate for special education—requiring "free appropriate public education" in the "least restrictive environment"—leaves little room for judgment or balance. 

Over the past 40 years, special education has become a bureaucratic jungle—where everyone is so tangled in legal vines, and scared of legal claims, that there is no room to do what’s right. Last year in Florida a 9-year-old boy who is blind and born with only a brain stem was forced to submit to a test where instructors asked him to identify pictures. As a school board member commented: "He’s blind. And they’re showing him pictures of a giraffe, a monkey and an elephant—and asking him which one is the monkey…. I'm watching all this and just about to lose my mind."

The absurdist quality of testing children in a coma or born without a brain exposes a regulatory system that has lost the oxygen of common sense. All kinds of bad choices emerge from the self-contained bureaucracy. Some principals say they spend as much as half their time dealing with special ed legal demands. The learning of other students is compromised when uncontrollable, sometimes violent, children, are mainstreamed based on their parents’ legal demands. Wealthy parents have the legal right to demand school districts pay for private schooling—sometimes at a cost that exceeds $100,000 per year. 

How much does all these special ed entitlements and bureaucracy cost? Special ed now consumes over 25% of the total K-12 budget in America, for a tiny proportion of students who actually need it. Meanwhile, there’s almost nothing in programs for gifted students—less than 1%. Nor is there any material budget for pre-K education, which is why New York Mayor de Blasio campaigned for new taxes on the wealthy—which would almost certainly drive some taxpayers out of the jurisdiction. Who made the decision that this special ed spending is the right balance of school budgets? No one. No one is even asking the question. 

Gosh, say defenders of the status quo, we wouldn’t want to go back to the bad old days. But our choice isn’t between cruel neglect and bureaucratic excess. The goal is always balance. As I described in my last book (Life Without Lawyers), countries such as Denmark provide robust special education services in the context of balancing the needs of all students. The difference there is that officials have the responsibility to use their judgment in each situation, not follow mindless mandates.

America’s special ed system is not just unwise, or inefficient, or absurdist. It is immoral. It is immoral not in its broad goals, but in its implementation. It is immoral to give disabled students a Rolls-Royce budget and give all other students what’s left over. It is immoral to treat grieving parents as bureaucratic boxes on a checklist.  

In a recent e-mail seeking relief for her dying son from Florida’s assessment requirements, Andrea Rediske wrote: "Every day that [the special ed teacher] comes to visit, she is required to do paperwork to document his ‘progress.’ Seriously? Why is Ethan Rediske not meeting his 6th-grade hospital homebound curriculum requirements? BECAUSE HE IS IN A MORPHINE COMA. … This madness has got to stop."

The IDEA is expected to be reauthorized as soon as next year. It’s not hard to figure out why there’s no political champion for overhaul. Who wants to incur the wrath of special ed parents who, understandably, want everything possible for their children? But this madness has to stop.

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When Compromise Is Not the Answer

Howard’s Daily by Philip K. Howard

Polarized politics is one symptom of our broken democracy. But compromise is not necessarily the answer either, as epitomized by the new $1 trillion farm bill. New Deal-era crop subsidies were obsolete by 1941, when America’s entry into WWII created inexhaustible demand for food and other crops. Yet both parties, holding hands in the name of comity, have continued these obsolete subsidies for over 70 years—now mainly going to large corporate farms. The new bill eliminates direct payments while increasing crop insurance supports, hoping Americans won’t notice that money is fungible.

For government to function, democracy must be able to set new priorities—changing what doesn’t work or isn’t needed, as well as meeting new needs. Sometimes democracy can add new programs, as with Obamacare. But it seems incapable of getting rid of the old ones. This is not sustainable.

Compromise is not the answer. Holding hands does little good when driving over a cliff. America needs a new vision of how to clean up old programs. See the discussion on obsolete law at "America the Fixable" (Common Good’s 2012 series at theAtlantic.com).

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A Better Conservative Critique

Howard's Daily by Philip K. Howard

Today’s mainstream conservatives are predictably anti-big government—a theme that ignores how government oversight is often essential to freedom in an interdependent society. Just as freedom requires cops on the street, so too it requires inspectors to safeguard against unsanitary restaurants and dingy nursing homes.

But in two columns over the weekend, a new conservative critique emerges that I believe is more accurate. In "Meanwhile, Back in America …", Peggy Noonan discusses the gap between the rhetoric of the State of the Union speech, and the reality of Big Brother in people’s daily lives. The main flaw as I see it is not in government’s aspirations, but in its implementation. It is not hard to imagine government that allows practical choices on the ground, or accommodates different values. But instead it clings to a one-size-fits-all approach that sues to end a school voucher program in Louisiana because it is successful in helping motivated minority students escape awful public schools.

Joseph Rago’s interview of Sen. Tom Coburn reveals a conservative as fed up with right-wing special interests as with those of the left. Sen Coburn has concluded, clearly correctly in my view, that "I don’t think Washington can fix Washington." The culture of government is dedicated to itself, not to the society it supposedly serves. It is too inbred, too paralyzed in accumulated laws, as I argue in my new book (The Rule of Nobody, April). What’s needed is an outside movement to force a dramatic spring cleaning and resetting of priorities. Think the 1960s. The villain is not Bull Connor but a suffocating, unaffordable bureaucratic blob feeding special interests on all sides.

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Fair Regulation Requires Human Judgment

Howard’s Daily by Philip K. Howard

Perhaps it’s fitting that Madison County, Illinois—where trial lawyers roam the courts like gunslingers—is now also a symbol of bureaucratic excess. This week Madison County authorities shut down the fledgling cupcake business of 11-year-old Chloe Stirling (“Hello, Cupcake!”), because health department rules require her either to purchase a commercial bakery (hmm, that’s practical) or to have a dedicated kitchen (ditto). Chloe’s cupcake business now is tossed onto the scrapheap of neighborhood activities, such as children’s lemonade stands, soup kitchens, and school fundraisers that, inevitably, conflict with cast-iron bureaucratic rules that loom over our (supposedly) free society.

The flaw here is the notion that regulatory oversight requires one-size-fits-all. The main public purpose of health regs is to avoid poisoning people, an undeniably worthwhile goal. But regulators should focus on the goal, not rule micromanagement. Officials must have flexibility to make exceptions for life’s little activities—at least until a real problem emerges. Yes, giving officials flexibility can sometimes lead to problems, as with certain police practices. But if police enforced every law literally, most of us would be in jail for jaywalking. It is impossible to regulate society fairly and sensibly without human judgment. Chloe Stirling is only the latest example of America’s flawed governing philosophy. See generally www.commongood.org.

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