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

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Paper: “America Today: Burkean Nation?”

In a paper addressing Edmund Burke’s concept of nationhood, Alfred University Professor Robert Heineman draws from The Rule of Nobody. He writes in part:

In his aptly titled book, The Rule of Nobody (2014), Philip K. Howard examines the deterioration of values and authority in contemporary American culture. He chronicles the attempts of legislatures to compensate for the moral vacuum in American public policy by enacting detailed legislation, thinking that the greater the detail the more likely that national goals will be met. The problem, of course, has been that legislation must be implemented and that implementing agencies have taken refuge in process. Procedures have replaced individual judgment, and, most important, this moral neutrality, perhaps impotence would be a better term, has led to egregious examples of outright stupidity, if not tragedy. In Howard’s words, ‘The philosophy of neutral rules pushed society another giant step toward immorality by basically abandoning any pretense of moral responsibility. Just go by the book.’

Professor Heineman’s paper, “America Today: Burkean Nation?,” was delivered on February 28, 2015 at the Edmund Burke Society Conference at Villanova University. You can read a draft copy of it here.

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Press Release: Health Courts Gain New Momentum in Congress

Common Good released the below press release on February 18, 2015. Download it as a PDF here.

CONTACT: Miranda Barbot – Goodman Media International
212-576-2700; mbarbot@goodmanmedia.com

HEALTH COURTS GAIN NEW MOMENTUM IN CONGRESS

President Obama’s Expressed Support for Them
Could Provide the Basis for Bipartisan Agreement

New York, NY—February 18, 2015—The creation of specialized health courts is gaining new momentum on Capitol Hill. Earlier this month three prominent Members of Congress introduced an alternative to the Affordable Care Act, which includes the creation of health courts. While the future of that plan is unknown, the inclusion of health courts is significant, because health courts have previously been endorsed by President Obama. Health courts could thus emerge as a point of bipartisan agreement.

The three Members of Congress are Sen. Orrin Hatch (R-UT), Chairman of the Senate Finance Committee; Rep. Fred Upton (R-MI), Chairman of the House Energy and Commerce Committee; and Sen. Richard Burr (R-NC), a member of the Senate Finance Committee. They have proposed the Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Act to replace the current health law. Included in the nine-page summary of its provisions is the following language: “States could also elect to establish a state Administrative Health Care Tribunal, or ‘health court,’ presided over by a judge with health care expertise who can commission experts and make the same binding rulings that a state court can make.”

Health courts have previously been the subject of bipartisan agreement. Both President Obama and his 2012 Republican challenger Mitt Romney endorsed them. Mitt Romney advocated the creation of health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

In addition, the National Commission on Fiscal Responsibility and Reform endorsed the creation of health courts, as have three other bipartisan commissions: the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The concept of health courts has been championed by Common Good—the nonpartisan government reform coalition—working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice—and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

In the past, the creation of health courts has been blocked in the U.S. Senate by aggressive opposition from a single special interest—the trial lawyers, who benefit handsomely from the current erratic system of medical justice and held great sway with the previous Senate leadership.

“The public would benefit enormously—saving tens of billions of dollars—from the reliable medical justice that health courts would provide,” said Philip K. Howard, Founder and Chair of Common Good. “With the new Senate leadership and President Obama’s endorsement of health courts, let’s hope that the public interest will now be put ahead of the trial lawyers.”

For more information or to talk with Common Good Chair Philip K. Howard, please contact Miranda Barbot at 212-576-2700 x264 or mbarbot@goodmanmedia.com.

Common Good (www.commongood.org) is a nonpartisan government reform coalition dedicated to restoring common sense to America. The Founder and Chair of Common Good is Philip K. Howard, a lawyer and author of The Rule of Nobody (to be published in paperback next month by W.W. Norton) and The Death of Common Sense. The Rule of Nobody sets forth a vision for fundamental government overhaul.

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“Bureaucrats Take On Bureaucracy”

The Sacramento Bee ran a good piece last week on the efforts of five retired California public employees who are trying to slim down the state’s outmoded job classification system—to some 2,000 job titles, from the current 3,666. Here’s an excerpt from reporter Jon Ortiz’s story:

They asked questions like this: Does the state really need 27 pay levels for prison math teachers? How about forensic toxicologists I, II, III and IV? The Technology, Trade and Commerce Agency was abolished 11 years ago, so why are its job classes still on the books?

‘We were amazed by that one,’ Fong said.

Simplifying the system won’t cure the state’s ailments, but it would signal that government values efficiency and wants to make itself more available to outsiders currently mystified when they apply for a state job. It would also cut down on needless, costly testing for promotions between jobs with little real difference. And it would clear out the clutter of tailor-made job classifications that sometimes were devised by a department with a single person in mind.

Click here to read the entire article. Convoluted job classification systems are not exclusive to California—New York City alone has over 1,000 job titles, as Philip Howard writes about here.

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Radically Simplify Law

UPDATE: On the Volokh Conspiracy blog at the Washington Post, David Post writes about Philip’s Cato essay, calling it “very interesting and thought-provoking.” Read the entry here.

ORIGINAL 11/17/14 POST: Writing for the Cato Institute's online forum on reviving economic growth, Philip Howard argues that we must radically simplify law to unlock the potential of the individual:

Law needs to get rebuilt. There’s no avoiding it. Sensible choices today are illegal.Productive activities are sinking in legal quicksand. Even the president can’t break loose. It’s the law.

But the new approach to law is not (generally) captured in the idea of “deregulation.” Most Americans want environmental review, special ed, financial regulation, licensing of food vendors, and oversight of healthcare delivery. Lawsuits are an essential tool of the rule of law.

All of these desirable goals of law, which should enhance our freedom, are instead undermining our freedom. Indeed, it’s hard to find one government program that isn’t broken, and often counterproductive.The evidence is irrefutable: Read Peter Schuck’s book, Why Government Fails So Often. My favorite failure is civil service — designed to be “the merit system,” it instead makes it illegal to judge anyone based on merit.

The mutant root that has produced this impenetrable bureaucratic kudzu is the idea that law can supplant human judgment. We have tried to create a hands-free legal code, without any risk of human frailty. Most legal detail is aimed not at important legal goals or principles, but at dictating daily implementation. That’s why the Volcker rule is 950 pages. The Constitution, by contrast, is ten pages.

American law has become central planning. Actually, it’s worse, because the planners are dead.Detailed laws and regulations are still dictating behavior decades after they are written, when circumstances have long since changed.

The solution, broadly, is to restore human responsibility as the activating force of law and regulation. Law should be radically simplified into goals and governing principles, like the Constitution, and leave to accountable humans the responsibility to achieve those goals fairly and sensibly. Law becomes a fence around a corral, within which humans can try to achieve results in their own way. Any successful regulatory oversight works this way. The FAA, for example, certifies new planes as “airworthy” without detailed codes on how many rivets per square foot etc. Would you rather fly on a plane that was permitted to fly only because a court decided it complied with detailed regs? Australia replaced a thousand rules for nursing homes with 31 broad principles such as requiring “a homelike setting” and respecting “privacy and dignity.” The experts scoffed. Within a year the nursing homes were materially better.

Read the full essay here.

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New York Times: Infrastructure Roadblock

Common Good Chair Philip K. Howard penned the following letter in today's New York Times:

In "Ideology and Investment" (column, Oct. 27), Paul Krugman rightly argues for greater investment in public infrastructure, but he doesn’t mention that bureaucracy, not ideology, has put the brakes on every recent infrastructure initiative.

A White House report in February revealed that only 3.6 percent of the $800 billion federal stimulus plan went to rebuilding transportation infrastructure. That’s not because ideology got in the way but because federal, state and local bureaucracy did.

Infrastructure approvals can now take a decade or longer, extending beyond the term of any president. In greener countries like Germany, by contrast, approvals rarely extend beyond 20 months.

To rebuild America’s decrepit infrastructure, responsible officials must be authorized to say “go.” An official of the Environmental Protection Agency must be given the job of deciding when there’s been enough review. A “one-stop shop” must be created to coordinate all needed approvals.

Infrastructure is a good investment. Bureaucracy, not ideology, is what stops it.

Read the original here.

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Ideas for a New Political Platform

by Philip K. Howard

Most Americans think government is broken, and despair of either party fixing it—indeed, 58 percent say we need a new political party. But what should a third party—or an independent grassroots movement—stand for?

Let’s start with the simple, essential goal of fixing and modernizing our broken government. A crescendo from all sides is calling for a complete overhaul—including books by the editors of The Economist (The Fourth Revolution), Peter Schuck (Why Government Fails So Often), Francis Fukuyama (Political Order and Political Decay), Eugene Steuerle (Dead Men Ruling) and my new book (The Rule of Nobody). But Washington will keep doing what it did yesterday until forced to change. That will require a movement that millions of Americans stand behind.

The platform, in my view, should focus on neglected goals, not merely dealing with sleazy aspects of democracy. Goals are tangible touchstones, providing clear targets as well as a basis for accountability. The continued failure of the political establishment to make progress on core goals is also irrefutable.

In trying to appeal to the vast unrepresented middle, the platform probably also needs to accept goals that each ideological wing instinctively resists. Liberals care about the environment. Conservatives care about fiscal responsibility. Moderates care about both. As an alternative to political stalemate, this draft platform calls for balanced initiatives to achieve both fiscal responsibility and a sustainable environmental footprint. The way to pay for this is to radically simplify government, updating priorities and eliminating notorious waste, inefficiency and special interest subsidies that extend back to the New Deal. As a bonus, a modern, simplified government can liberate everyone from bureaucratic paralysis—getting millions to work on rebuilding infrastructure, and relieving doctors, teachers, small businesses and everyone else from the migraine headache of mindless bureaucracy.

Here it is.

Platform for the Future.

America is drifting toward the rocks. Political parties are unlikely to risk making tough choices. A new group needs to build support for a functioning future framework. The movement should be built upon three core principles, which the political system continually fails to act on. We must demand these principles not as partisan goals, but as moral mandates:

  1. We must modernize government. Government is paralyzed by an accumulation of obsolete programs and mindless bureaucracy. This bureaucratic blob is smothering the American spirit. Initiative and spontaneity are increasingly illegal—bogging down teachers, entrepreneurs, citizens, even the President. The solution is not to get rid of government but to reset priorities and simplify decision-making. Human responsibility, not endless bureaucracy, should be the organizing structure of government.
  2. American government must not mortgage the future. The undisciplined accretion of subsidies and entitlements is immoral, making our children pay tomorrow for today’s benefits. The solution is not to terminate programs but to overhaul them to eliminate their many inefficiencies and inequities, and to make sure they are responsibly funded.
  3. America must be a responsible steward of the earth’s resources. America will have no moral authority to lead worldwide initiatives for clean air and water, and to preserve the vitality of oceans, unless it is disciplined in its use and oversight of finite natural resources. This requires new incentives that protect base levels of sustainability.

To accomplish these goals, American government needs to be rebuilt. There’s no avoiding it. The status quo is set in legal concrete. Fulfilling moral mandates of responsible government requires new codes—replacing the massive junk pile of well-meaning laws and programs with modern, practical structures that meet the needs of today’s society, not yesterday’s.

America’s political culture will not be helpful. It has become an engine of the status quo, going nowhere at great expense, as special interests succeed in preventing change. Breaking free of this broken political culture requires a new vision, fueled by moral imperative, of where America needs to go. What’s the right thing to do? That’s the question that should guide our choices, and define America’s future.

Join with us by signing on.

What do you think? I hope you will comment, here or at the Huffington Post.

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Breakout with Newt Gingrich

In his September 29th "Breakout" podcast, former Speaker of the House and Common Good Advisory Board member Newt Gingrich talks with Philip Howard about reforming the federal government and The Rule of Nobody. Listen to the conversation here.

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When Humans Lose Control of Government

Writing for The Atlantic, Philip Howard argues that modern government lacks any sense of responsibility:

Who’s responsible for the budget deficits? Nobody: Program budgets are set in legal concrete. Who’s responsible for failing to fix America’s decrepit infrastructure? Nobody. Who’s responsible for not managing civil servants sensibly? You get the idea.

Our mistake, Howard says, is in trying to establish "clear law" that accounts for every possible circumstance in order to eliminate human error. While this sounds good in theory, in practice it prevents government officials from making sensible decisions. Take the recent VA hospital scandal for example:

Why did VA officials regularly falsify waiting times? Bureaucratic metrics required them to meet waiting time deadlines—or else they would forfeit a portion of their pay. Why didn’t they just do a better job? Compliance was basically impossible: Congress had mandated more VA services but only modestly expanded resources. Undoubtedly, better efficiency could have been squeezed out of available resources, but that would require liberating VA officials from civil-service straitjackets so they could manage other civil servants. Rigid bureaucracy, not the inexcusable dishonesty of VA officials, was the underlying cause of the VA scandal.

Howard goes on to recommend three areas of bureaucracy that are ripe for reform: Oversight of social services, the environmental review process, and the civil service system. Read his proposals here.

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City of Angels Seeks Red Tape Savior

While stories of federal government inefficiency usually involve more jaw-dropping numbers and create more heat among the chattering classes, paralyzing and wasteful bureaucracy permeates every level of government. Steve Lopez of the Los Angeles Times this week tells the story of Bob Stone, a fix-it man hired to curb L.A.’s red tape problem--for an annual salary of $1 (which he still hasn’t received). Mr. Stone is no stranger to government paralysis; he was instrumental in Vice President Al Gore’s "reinventing government" initiative (in which Philip Howard also participated). But in L.A., Mr. Stone found a bigger challenge than he had expected: "After struggling and battling the federal bureaucracy for 30 years, I thought L.A. would be a pushover. But it's tougher than the federal bureaucracy."

Mr. Stone discovered that city employees are forced to navigate a labyrinth of approvals and checks, even for what should be simple tasks, like ordering firefighter uniforms. Both workers and managers waste countless hours following outdated procedures, filling out paperwork, and struggling with obsolete technology:

"Two-thirds of what passes as management is interfering with workers getting their work done," Stone said, attributing the suffocating practice to a 19th century notion that "the way to manage is to control what people do."

So Mr. Stone is doing his best to simplify--replacing complex and expensive procedures with simple and affordable alternatives, saving the city money and, perhaps even more importantly, freeing city employees to do their jobs. As Lopez writes:

Any large organization, public or private, has dumb ways of doing things just because that's the way they have always been done. And at any given time, Stone suggested without irony or exaggeration, roughly one-third of all employees are impeding the work of the other two-thirds.

Does that mean there are too many employees, I asked? What it means, Stone countered, is that employees could get a lot more done if they weren't bound and gagged by red tape and managerial impediments.

More cities could use the kind of intervention Mr. Stone is undertaking. And perhaps such efforts can serve in turn as instructive examples for federal bureaucracies.

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The Dawn of a New Political Narrative?

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.

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