Blog — Government
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 6/27/14 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.
The Economist's editor-in-chief, John Micklethwait, recently joined Philip Howard for a discussion around their two recent books: Micklethwait's The Fourth Revolution and Howard's The Rule of Nobody. Watch an excerpt of their conversation here:
Posted 6/5/14 by Benjamin Miller
by Benjamin Miller
Philip Howard’s new book, The Rule of Nobody, reveals the consequences of entrusting governance to broken bureaucracies and accumulated, often outdated law. A concern that often arises in this discussion is with granting officials authority to use their judgment. An individual can make a bad call, the thinking goes, in contrast to the security of a systematic, (ostensibly) impartial legal and regulatory system.
It’s a concern worth considering. In The Rule of Nobody, Philip argues that if you simply look at the real, scandalous consequences of the heavily bureaucratic approach we’ve accepted (from exploding budgets to banned lemonade stands), it’s clear real people are needed to exercise judgment and instill common sense. There’s a positive angle as well: individuals with the authority to use good judgment can take pride in their work and strive to solve problems from the federal level down to individual communities.
Victor Lee Austin is a priest (and a personal friend), and his book Up With Authority concerns, in part, church hierarchy and doctrine. But Austin’s project—as suggested by the book's subtitle, "Why we need authority to flourish as human beings"—at its heart concerns this positive side of authority as it appears, or should appear, across not only religious communities, but also society and politics.
It’s unhealthy, Austin argues, to see authority as a necessary evil—an unavoidable cost of maintaining order that ought to be minimized. Rather, authority enables us as individuals and groups to do things that would otherwise be impossible. Consider a symphony orchestra:
Decisions must be made about phrasings, about tempo, about volume and blend of various instruments. On each of these questions there are many wrong answers, but there is also seldom just one right answer. So decisions must be made. And they must be made amongst alternatives which have equal reason. So someone, an authority, in this case the conductor, has to determine how the music will be played. And the musicians must accept the conductor’s determinations and play as she directs, or else there will be no music.
Does a musician lose his freedom when he plays as his conductor directs? …Without the authority of a conductor, that symphony never could be heard.
Now of course a conductor will sometimes make a bad decision. A conductor might even at times exhibit malice or bias, and there must be avenues of recourse for musicians who are unjustly treated. But these risks don’t mean that an orchestra would be better off without a conductor.
Teachers, regulators, and business owners may also make bad decisions from time to time. For decades we've tried to minimize such mistakes by writing increasingly specific laws and regulations. Thus over time we've severely constrained the ability of people in positions of authority to exercise discretion. But the antidote to bad decisions isn't to prevent decisions from being made at all.
As Austin puts it: "[T]he reality of evil in the form of fallible authority is not an argument against authority." Yes, people in positions of authority will sometimes make mistakes, errors in judgment, even willful wrongs. But that doesn't mean we would be better off without people—even fallible people—in positions of authority. We entrust individuals with authority not because they are perfect but because we believe they can make necessary decisions.
Up With Authority is available on Amazon and elsewhere.Comment ›
This weekend the Washington Post published an op-ed by Philip K. Howard which presents a case for combating government dysfunction. The diagnosis:
I think we have it backward. Polarization is mainly a symptom, not the cause, of paralysis. Democracy has become powerless. Politicians who are impotent have no way to compete except by pointing fingers.
The main culprit, ironically, is law. Generations of lawmakers and regulators have written so much law, in such detail, that officials are barred from acting sensibly. Like sediment in the harbor, law has piled up until it is almost impossible—indeed, illegal—for officials to make choices needed for government to get where it needs to go.
And the solution?
Human responsibility should be restored as the operating philosophy for democracy. Only real people, not bureaucratic rules, can make adjustments to balance a budget, or be fair, or change priorities. Democracy cannot function unless identifiable people can make public choices and be accountable for the results.
Read the full piece here.Comment ›
by James R. Maxeiner
At 16,014 feet long, the Tappan Zee Bridge that crosses the Hudson River at Tarrytown is the longest bridge in New York and among the fifty longest bridges in the United States. Although only sixty years old, the bridge has long been in need of replacement. President Obama’s May 14 visit to the Bridge gives us hope for infrastructure approval reform in America even as it reminds us of how far the United States has to go and of how long we must bear the costs of our failures to coordinate approvals.
President Obama touted that through his personal intervention, approval of the replacement bridge had been fast-tracked and that the time required for approval had been cut to one-and-one-half years from the “normal” three to five years (or, he might have added, from the not uncommon decade or longer required for some infrastructure projects, such as the Bayonne Bridge). Fast-tracking does not mean slipshod review; it does mean coordinating and reducing required approvals.
The President announced plans to apply the same strategy to eleven other major infrastructure projects. But that’s not good enough. We need coordinated approval to be the norm for all projects. Three to five years should be the exception, not the rule. Moreover, we need a strategy that coordinates infrastructure projects, period. Why?
NPR this week reported why the Tappan Zee Bridge is so long—crossing the Hudson at one of the river’s widest points. Why not at a narrower point? Because where the river narrows, the bridge—and its lucrative tolls—would have fallen within the jurisdiction of the Port Authority of New York & New Jersey. Governor Thomas Dewey wanted those tolls instead to raise revenue for highway construction. So the bridge was built, at great expense, at one of the widest points on the Hudson. And this political decision from sixty years ago predetermined where the new bridge is today being built: where the old bridge is, at the river’s widest point.
Governor Dewey’s political decision reminds us that while laws can anticipate the future, they cannot do so perfectly, and need to be updated periodically. In 1921 New York, New Jersey, and federal laws created the Port Authority to facilitate cooperation between the two states, but they did not fully anticipate the growth of the New York City area over the next thirty years. In 1956, regional highway infrastructure cooperation became national policy when Congress created the Interstate Highway System. But the "bridge too far" had been finished the year before, too late to be moved.
President Obama’a visit reminds us that we should not wait another sixty years for a general coordination of infrastructure approvals.Comment ›