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Information, ideas, news and commentaries on fixing America’s broken governmental and legal systems.

Resources — Philip K. Howard: New Ideas

What Broke Washington

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.

Good Government vs Less Government

Howard's Daily by Philip K. Howard

“The problem with Howard’s ideas is that they rest on the naive fiction that there can be such a thing as ‘good government.’ In fact, the best we can hope for is less government.” So ends the critical review by Logan Albright of my new book The Rule of Nobody for the Von Mises Institute.     

Just get rid of government wherever possible. That’s the simple narrative that appeals to many conservatives. Government is indeed filled with obsolete programs, such as New Deal farm subsidies. It also smothers freedom with many overbearing regulations. Shutting down children’s lemonade stands for want of a vendor’s license, for example, is absurd. Moreover, it is hard to find any government program that isn’t broken in large part. The Social Security disability program, for example, is rife with abuse. Social Security itself, perhaps the most efficient social program, is on the road to insolvency. 

But the orthodoxy of smaller government doesn’t deal with the failures of what remains. Moreover, government has gotten ever bigger, even under Republican presidents, as the country confronted new challenges such as terrorism. Most citizens probably would vote for government oversight for clean restaurants, caring nursing homes, and airworthy planes.  

Instead of wholesale attacks on government, philosopher Roger Scruton argues in a thoughtful essay in the new issue of First Things ("The Good of Government"), conservatives should be more discriminating about where government is needed to enhance the culture of a free society. 

The important question—addressed by neither conservatives nor liberals—is why government works so badly. Environmental review shouldn’t take a decade. Starting a small business shouldn’t require permits from a dozen different agencies. Principals ought to be able to terminate ineffective teachers.   

Government is organized to fail, I argue in my new book, because nobody in modern government is free to make sensible choices. No one can say, "Oh there’s no need for kids to have a vendor’s license for a lemonade stand." The president lacks the authority to expedite rebuilding projects. The teacher can’t dismiss a disruptive student without risking a drawn-out legal proceeding. Everyone is shackled to detailed rulebooks. Government is run not by accountable officials, but by humans who are told to act like legal robots. Law has become central planning. It is hardly surprising that every encounter with government is an exercise in frustration when nobody—not the regulator, not the citizen—is free to adapt to the circumstances.  

A certain conservative orthodoxy, ironically, joins with liberals in demanding a central planning vision for public choices. Better legal shackles than a public official running amok. What if the official is a tyrant? That’s why the Nobel laureate Friedrich Hayek concluded in his early writings that "government in all its actions…[should be] bound by rules announced and fixed beforehand."

There are many flaws in this assumption that detailed law enhances freedom. The current system of several billion words of law does not protect against a regulatory tyrant. No one, not even large companies with hundreds of lawyers, can conceivably comply with volumes of detailed rules. When noncompliance is unavoidable, officials have carte blanche to be tyrants: "Sorry, you don’t comply with Rule 256 (v)(3) (iii)."

Moreover, our options for a government operating philosophy are not limited to 1) mindless rules or 2) anything goes. The Rule of Law can constrain officials with goals and general principles, while still providing flexibility to act sensibly. Our most important principles of law—say the "reasonable person" standard—always require application by reference to social norms. But, to some conservatives, the idea of an official having discretion—even limited discretion—is like holding a cross in front of Dracula. 

Here’s how Mr. Albright criticized my vision of law that leaves room for human judgment: 

"Howard suggests that an exhaustive list of food standards for nursing home could be simplified to a simple requirement that they provide ‘nutritious meals.’ This sounds like common sense, but what exactly is a nutritious meal? If the inspector happens to be a vegetarian, what is to stop them for forbidding red meat, when the residents and their families were perfectly happy to have it? Discretion allows the biases of individuals to creep into enforcement, and to pretend that anyone is capable of acting wholly without bias is to deny human nature."

Is requiring "nutritious meals" really an invitation to abuse? There are accepted guidelines for nutritious meals from professional medical societies. No inspector ever has unfettered discretion to demand whatever he wants. If an inspector demanded vegan meals for everyone, or caviar at dinner, the nursing home operator could just say no. To enforce his order the inspector would have to go to court. Who do you think would win?  

General principles of law are not invitations to tyranny but the opposite. "Standards that capture lay intuitions about right behavior," Judge Richard Posner notes, "may produce greater legal certainty than a network of precise…rules."

Principles are enforced according to current social norms. True, they leave room for argument. But so, usually, do precise rules. "Clear law" (with a few exceptions like speed limits and age eligibility) is generally a myth. Ambiguity is inherent in most language. With general principles, the argument focuses on right and wrong: Is this food nutritious? With precise rules, the argument focuses on parsing a legal language. The argument is no longer tethered to lay intuitions of what’s right.   

I know conservatives would prefer to have no regulation. But will de-regulated nursing homes pass muster in a democracy? Over 50% of nursing home residents suffer from dementia. Can we really rely on market forces? Mr. Albright may not trust government regulators, but I suspect most Americans wouldn’t trust nursing home operators either.    

How does it work out when rules permit human judgment? Airplanes are certified to be "airworthy" by FAA experts without detailed guidelines on how many rivets, etc. Would you prefer that market forces decide which planes can fly safely? Or, in the alternative, would you prefer a regime of thousands of rules where plane manufacturers can go to court, over the objections of FAA experts, and get a judge to decide that the plane complies with rules? Personally, I’d like the FAA experts to make the final decision. 

Nursing homes in America, notwithstanding a thousand rules, are generally awful. How do we make them better? Mr. Albright says deregulate. I suggest radically simplified standards for oversight. In the late 1980s Australia abandoned its detailed nursing home rule book and replaced it with 31 general principles that focused on goals, such as requiring "a homelike setting," and respecting the "dignity of the residents." Within a year, nursing homes were materially better, and they’ve continued to improve over time. The reason? People are empowered to do what they think is right, not act like mindless robots.

Mr. Albright places his faith mainly in markets:

"The market is a sorting mechanism that keeps these people in line in order to preserve their profits, but government is not subject to market pressures. As such, the problem is more fundamental than too much or too little rigidity. Government is fundamentally corrupt, as it rests entirely on the premise of coercive power. Rather than tinkering with the levels of discretionary authority officials possess, we would do better to limit their power."

I too believe in the effectiveness of markets. But markets are not always good at making moral judgments, or protecting against abuse. That’s why law is essential to freedom.

Just as unfettered government authority is an evil, so too an unfettered market can lead to evil. The trick is to have the right tension between government and markets, and to have accountability over government. Democracy too should be a kind of market, with people voting their preferences. Instead democracy is out of anyone’s control. It doesn’t matter much whom we elect, because the law tells everyone what to do. By clinging to the orthodoxy of detailed law, we have unwittingly removed accountability from democracy while trying to guarantee against its abuse. 

At the end of his life, Hayek recanted his demand for mechanical government, saying that he had reconsidered "the supposed greater certainty [when]…all rules of law have been laid down in written and codified form." Law works better, he concluded, when decisions are made "by generally held views of what is just."

Human initiative, not rules, make the world go round. This is what conservatives believe, and they are right. Then why don’t they see that the same truism applies to government? Government will never get fixed until humans within it are allowed the flexibility that goes along with taking responsibility. Only then can democracy hold them accountable for the many failings of modern government.

Trust the Government?

Howard's Daily by Philip K. Howard

Last week George Will wrote a powerful column on how "The Heavy Hand of the IRS Seizes Innocent Americans’ Assets." The episode involved an immigrant who owned a grocery store in Fraser, Michigan. Because about a third of its sales are in cash, the owner regularly deposited cash in a bank across the street. There is an anti-money laundering law, aimed at drug dealers, which requires banks to report cash deposits of more than $10,000, and also prohibits people from structuring deposits to avoid the law. The grocery store had been audited by the IRS several times in recent years, without any finding of suspicious activity. Last year, under broad power to catch criminals, the IRS without notice seized the grocery store’s bank account. 

The story, most would agree, is an outrage. What went wrong here? George Will attacks both the law—the "guilty-until-proven-innocent" forfeiture power—and the IRS agents who decided that a grocery store making regular cash deposits was a criminal enterprise. However much Americans distrust government, Will concludes, that "distrust of government is insufficient."

Let’s unpack the story, and see if there is a moral for how government should work. I’m not an expert on money laundering, but can readily imagine why in certain circumstances the government should be able to freeze assets. Otherwise, with the press of a button, criminal resources can be transferred out of the country.   

But that’s obviously not the situation here: the supposed vehicle for crime, a local grocery store, is going nowhere. It is perpetually receiving cash for cans of Coke and quarts of milk. The IRS had no need to seize deposits in order to avoid the owner fleeing the jurisdiction with ill-gotten gains. 

The main thing that went wrong here is a failure of human judgment. The IRS agents abused their power. What’s the solution? In any sensibly-organized democratic structure, after an investigation, the responsible IRS officials should be sanctioned or fired. 

But civil servants can’t be held accountable. The so-called "merit system" has evolved to become an "anti-merit system." Public employees can’t be fired, or even sanctioned, without years of legal proceedings. I don’t think I’ve ever heard of a civil servant losing his job because he abused his power over citizens. It may be that the forfeiture law needs to include a stronger principle that it should be used only when there is reason to believe that targets and their assets will flee the jurisdiction. But that principle still requires human judgment. No set of words in law can ever remove the need for humans to act appropriately.  

Personal accountability should be the operating mechanism for any organization. Without it, culture soon degrades. Government today is a tangled jungle of incoherent law and regulation because we look to words, rather than personal responsibility, as the way of safeguarding against error. My conclusion is this: the main flaw in modern government is not that officials have too much power, but that they can’t be accountable when they abuse it.

Bill of Responsibilities: Proposed Amendments to the Constitution

An excerpt from The Rule of Nobody by Philip K. Howard.

There have been twenty-seven amendments to the Constitution. The most recent, the Twenty-Seventh Amendment, proposed in 1789 and ratified in 1992, prohibits changing congressional pay raises from taking effect until "an election of representatives shall have intervened." One has been repealed (the Eighteenth Amendment, which prohibited the sale of alcoholic beverages, was repealed by the Twenty-First Amendment).

Under Article V of the Constitution, the process for amending the Constitution basically requires two steps: First, the amendment must be proposed either by a two-thirds vote of each house of Congress, or by a constitutional convention called by legislatures of two-thirds of the states. Second, the amendment must be ratified either, at the choice of Congress, by legislatures of three-fourths of the states or by constitutional conventions in three-fourths of the states.

To the existing twenty-seven amendments, I propose adding five new amendments that would become the Bill of Responsibilities. These amendments could be acted upon together or separately.

1. The Twenty-Eighth Amendment would impose a mandatory sunset so that all laws and programs with budgetary impact would automatically expire every fifteen years, and could not be reenacted without new findings and a report from an independent commission. This amendment would not generally apply to criminal laws, for example, but would encompass most regulatory and social welfare programs. This amendment also would give Congress the authority to invalidate regulations that were promulgated pursuant to a legislative mandate—in effect, putting Congress on an equal footing with the executive branch, which currently has unilateral authority, subject to judicial review, to repeal regulations:

Amendment XXVIII: No statute or regulation requiring expenditure of public or private resources (other than to oversee legal compliance or enforcement), shall be in force for longer than fifteen years. Congress may reenact such a law only after finding that it continues to serve the public interest and does not unnecessarily conflict or interfere with other priorities. Before making its determinations, Congress shall consider recommendations by an independent commission on whether and how to amend any such statute or program. At any time, Congress by majority vote of each house shall have the power to invalidate any regulation promulgated under a statutory delegation, without presentment to the President.

2. The Twenty-Ninth Amendment would restore to the President authority to manage the executive branch more actively by issuing executive orders, subject to congressional override, to reorganize agencies, veto specific items in proposed budgets, and impound money to avoid waste. Today the executive branch is mired in obsolete congressional mandates, maintained by congressional inertia rather than deliberate choices. This amendment would give the President authority to push back while still leaving the ultimate judgment with Congress:

Amendment XXIX: By executive order, subject to being overridden by majority vote in each house, the President may: reorganize executive agencies and departments; veto line items in proposed budgets; refuse to spend budgeted funds for any program in order to avoid waste or inefficiency; and undertake to accomplish statutory goals, consistent with statutory principles, by means other than those set forth in the statute or implementing regulations.

3. The Thirtieth Amendment would restore to the President authority to manage and terminate government personnel, subject only to budgetary guidelines and a neutral hiring protocol to avoid handing out jobs as “spoils.” This amendment is intended to return civil service to its roots as a “merit system,” not a sinecure of permanent employment. It is not possible to restore responsibility to government, giving officials flexibility to act sensibly and morally, unless they can be accountable. Historians of public service believe that modern civil service is neither effective nor responsive—an unrecognizable mutation of the original progressive vision for good government. Ossified civil service has become a symbol of bad government, and must be abandoned:

Amendment XXX: The President shall have authority over personnel decisions in the executive branch, including authority to terminate public employees, within budgetary guidelines and neutral hiring protocols established by Congress.

4. The Thirty-First Amendment would restore reliability to American civil justice by requiring judges to safeguard reasonable boundaries of who can sue for what. Lawsuits today are a tool for extortion and delay, with corrosive effects on free interaction throughout society. The first principle of fair justice is that like cases should be decided alike. That core precept requires judges to assert values of reasonableness, as a matter of law, to bring consistency to what has become a legal casino:

Amendment XXXI: Notwithstanding the provisions of the Seventh Amendment and any state law or constitution, in lawsuits that may impede the conduct of government, or that may diminish general freedoms of persons in society, judges shall make rulings of law drawing boundaries of reasonable claims and defenses, and dismiss claims and defenses falling outside those boundaries. No person shall be required to respond to any lawsuit unless a judge shall determine that the claims are reasonable and there are reasonable allegations to support them against each person.

5. The Thirty-Second Amendment would create an independent Council of Citizens to evaluate and issue reports on the workings of government. Government has acquired a life of its own, disconnected from the needs of society, but there is little focused objection because government maintains a monopoly on public discourse. This advisory council would be a locus of moral authority, untarnished by political ambition or monetary self-interest. Democracy needs citizen supervision:

Amendment XXXII: A Council of Citizens shall be established as an advisory oversight body on the workings of government. The council shall consist of nine members, Appendix: Bill of Responsibilities 183 chosen by and from a Nominating Council composed of two nominees by each governor of a state. The members shall each have a term of five years, and may be renominated and chosen to serve additional terms. The council shall have no mandatory duties other than to nominate independent commissions to advise Congress on the rewriting of laws. Congress shall provide funding adequate to support staff and shall provide an honorarium to each member of the council in an amount equal to the salary of a member of Congress.

More excerpts from The Rule of Nobody are available here.

A Ray of Hope: Mutual Bureaucratic Disarmament in the Proposed NYC Teachers’ Contract

A retroactive raise is what made the headlines of the proposed new NYC teachers’ contract. But the exciting breakthrough is the potential for abandoning the bureaucratic swamp that has made it impossible to fix NYC schools. 

Some school reformers will be excited that it will be easier to get rid of poor performers—requiring, according to news reports, poor evaluations in two separate schools. This is indeed important. It is impossible to build and maintain a culture of excellence when poor performers are in the classroom next door. One bad apple, studies show, can spoil the barrel.   

But the revelation of the new deal is the idea of mutual bureaucratic disarmament. For decades, the City and the union have done battle by imposing on each other more rules and requirements—for example, detailed requirements, sometimes minute by minute, on how a teacher must deliver a lesson plan, and requirements on exactly how many minutes per month a teacher has to listen to a principal.  

A study by Common Good a few years ago found that there were so many rules for NYC schools that no one had collected them in one place. Even the more rudimentary choices—say, removing a disruptive student from a classroom—are subject to dozens of rules and procedures that effectively remove a teacher’s authority to maintain order. Common Good constructed bubble charts of steps and procedures for basic choices that were five feet long.

All this bureaucracy makes schools unmanageable. But it also does something far worse. Bureaucracy kills the human spirit. It’s that simple. A teacher who is forced to trudge through mindless protocols cannot possibly be enthusiastic. Inspiring students is impossible when the teacher is forced to act like a bureaucratic robot.  

The myth of bureaucracy is that it makes sure things are done properly. But people can only think of one thing at once. Focus on A, as sociologist Robert K. Merton put it, and you cannot see B. Forcing teachers (and principals, and students) to focus on thick rulebooks just snuffs out the candle of human inspiration. What kind of role models are teachers who are forced to act like robots instead of moral models of maturity and fairness?

For decades leaders in schools have been stuck in a downward spiral of bureaucratic warfare. Good principals succeeded by ignoring the rules. New NYC Schools Chancellor Carmen Farina famously built a culture of excellence at PS 6 by, among other things, ignoring the bureaucracy. (I profiled her in my book The Collapse of the Common Good.) Union leader Michael Mulgrew is not one to give an inch, but in many different settings, in conversations with me and others, he too has highlighted how bureaucracy had become the worst enemy of teachers.  

The devil of every deal is in the details. But extra money to teachers is a bargain if New York City can unleash human energy and enthusiasm in its schools. Bureaucracy can’t teach.

Another Bipartisan Call to Reform the Infrastructure Approval Process

Howard's Daily by Philip K. Howard

The chorus grows for basic overhaul of infrastructure approvals. A recent essay by former Sen. Pete Domenici and Jason Grumet, head of the Bipartisan Policy Center, explains that “[o]ur permitting policies are antiquated and poorly matched to our rapidly evolving needs," leading to "train wreck[s]" of endless indecision like the Keystone XL debacle. To have any hope of modernizing our energy production and distribution, we urgently need to rethink the way that we approve infrastructure projects in America.

Civil Service Has Died. Long Live the Merit System.

Howard's Daily by Philip K. Howard

What single reform would most improve government? While there are many candidates—sunset laws and gerrymandering reform come to mind—probably the single most influential change would be to scrap the current civil service system and replace it with a genuine merit system.

Government employees are basically unmanageable. That’s the unavoidable conclusion of a new report by the Partnership for Public Service and Booz Allen. The dry language of the report cannot disguise a reality that would drive any manager to despair. Labyrinthian hiring procedures are "a mystery" that prevent managers from picking people who might do the job, and drive good people away from public service. Rigid policies "encourage long-term tenure" and are "a burden on government that needs to encourage flexibility and innovation." Accountability is nonexistent: "employees and managers view performance management as a paperwork exercise, an annual necessary evil that has little effect on their working lives."

The bottom line is that the civil service system is "increasingly obsolete." "Top performers seldom receive sufficient rewards, poor performers are rarely fired or demoted, and managers are not held accountable … for the outcomes."

Let’s pause for a second here. How government works, as with any enterprise, is largely dependent on the skill, energy, and judgment of its employees. Today, government can’t hire the best people, has little flexibility in managing them, and can’t reward the good ones or punish the bad ones. As a result, the culture in many government offices is dreary and depressed. These are not the conditions for effective government.

Public service should be honored, not treated as a stagnant backwater. That requires public employees to be treated as professionals—given real responsibility (not smothered by dense bureaucracy) and held accountable for their performance. The original idea of the "merit system" (the Pendleton Act of 1883) was that neutral hiring would avoid the abuses of the spoils system, but that public employees would still be accountable for their performance. There was no presumption of tenure. As one of the reform leaders, George William Curtis, put it, "If the front door [is] properly tended, the back door [will] take care of itself."

Fixing civil service is not hard, at least in concept. Give much more flexibility in hiring and management (still avoiding spoils), simplify all the civil service categories, and replace endless litigation over termination with a streamlined "one-stop-shop" oversight process, as recommended by the Partnership for Public Service. 

The challenge is to build public pressure. I think that will require a more detailed expose of the inefficiencies and drudgeries of life inside the beast. Americans can be made to care about this. Over 2 million civilians work for the federal government. Over 20 million work for government at all levels. The federal civil service is a model of efficiency compared with many state and local governments. New York City has over a thousand civil service classifications, encumbered by so many rules and rights that many employees spend more time figuring out what the rules require than doing their jobs. 

To put this opportunity in dollar terms, the total salaries and benefits of federal, state, and local public employees amounts to about $1.5 trillion, requiring on average $15,000 in taxes per American family. If the effectiveness of public employees were improved by 20%, that’s an annual savings (or improved performance) per family of $3,000. 

To put the opportunity in terms of a functioning democracy, just imagine if government attracted some of the best young people, and if mean-spirited or lazy public employees were drummed out, and if most public employees had a sense of personal responsibility and pride.

Democracy requires a genuine merit system, not a stagnant personnel bureaucracy wallowing in rigidities and entitlements.

How Obsolete Laws Block Infrastructure

Howard's Daily by Philip K. Howard

Urbanist Scott Beyer has a matter-of-fact essay in Atlantic Cities entitled "Seven Reasons U.S. Infrastructure Projects Cost Way More Than They Should." Government-set wages (1931 Davis-Bacon Act), lengthy environmental review, "buy American" laws, and mandatory do-good extras are among the provisions that, cumulatively, can double the costs of a public project.

America’s decrepit infrastructure (it has a D+ rating from the American Society of Civil Engineers) is attributable not mainly to a lack of resources, but to obsolete laws. All these laws hang around America’s neck like so many millstones.

It’s easy to fix. Congress could just pass a law that scrapes away the old requirements. Let the public sector bid out contracts like the private sector does. Give environmental officials authority to approve projects after a year of review, not a decade (as countries like Germany and Canada do).

But Congress treats existing laws like scripture. Congress doesn’t even have the idea that it is responsible for cleaning out obsolete laws. (See here.)

American government needs a spring cleaning. Not just to fix infrastructure, but to fix every program. Not to "de-regulate," but to make regulation practical, effective and in line with current priorities. If Congress won’t do it, then we need to organize a popular movement to force Congress to act. I talk about how to do this in The Rule of Nobody, reviewed in today’s Wall Street Journal.

Why Washington Is Broken: It’s Run By Dead People

"Words can't create fairness. It's goals and principles and people applying them that creates fairness and adequacy."

That's from Luke Johnson's interview of Philip Howard on the Huffington Post about Howard's forthcoming book The Rule of Nobody. Philip discusses the perils of micro-regulation, obsolete law, and the paralytic government culture of Washington. Here's an excerpt from the interview:

One of the phrases that struck me in the book is that "American Democracy is basically run by dead people." What do you mean by that?

The important decisions made by our government have been preset in legal concrete by statutes and regulations written in past generations and not altered for decades.

Special education, which is a really important law, but has had the unintended consequence of ballooning into about 25 percent of the total K-12 budget. There's none left over for programs for gifted children or pre-K education. Is that the right balance? No one is even asking the question.

It was a statute written in a certain way 40 years ago and that's just the way it works. It's like a runaway train.

You say "No one in Washington is asking what the right thing to do is." What do you mean by that, specifically?

I think Washington has become its own bubble, its own culture, separated by the Beltway from the rest of the country. It's mutated into a perpetual tug of war, where political leaders get up in the morning not trying to do anything constructive but just make the other side look bad.

The other people in Washington, lawyers, lobbyists and journalists, play their role in dealing with this perpetual tug of war, and nothing much happens. It's this paralytic political structure without any significant connection to the real needs of the country. I think it's a profoundly sick and dysfunctional political culture much worse today than it was even 30 years ago.

I don't think the problem is so much bad leadership or even polarized politics. I think those are symptoms of a structural powerlessness, where the combination of the accretion of law, the influence of special interest money, has made it so hard to change a law or to change directions that people have really given up.

Read the full interview on the Huffington Post.

The Cave of Federal Bureaucracy

Howard's Daily by Philip K. Howard

In Plato’s Republic, Socrates tells an allegory in which people imprisoned in a cave see only the flickering shadows of objects, animals, and humans reflected on cave walls. This is their reality. When one prisoner is released, and forced into the daylight of reality, his first instinct is to retreat back into the safety of the cave and its two-dimensional image of reality. When he then accepts the truth and returns to enlighten the other prisoners, they are threatened by the idea that reality is different than the flickering images, and won’t accept the truth when the first prisoner returns. 

Federal bureaucracy is a cave. Its reality consists of flickering images of decades of accumulated rules, often with no line of sight to a real world goal. Those rules require public employees to act in ways that are nonsensical—say, delaying vital infrastructure to study issues that have no conceivable bearing on the project. Rules sometimes trump morality. But rules are the only reality for those within the cave. Secluded in the darkness of federal bureaucracy, that’s all they see.

This metaphor, it turns out, happens to be a literal description of part of federal bureaucracy. An amazing report by David Fahrenthold in the Washington Post, "Sinkhole of bureaucracy," describes a huge cave in Pennsylvania, over 200 feet underground, in which 600 federal employees process retirement pensions of federal employees. In a world where computerized personnel systems are readily available to small businesses, all these government files are processed on paper, by hand. "The employees here pass thousands of case files from cavern to cavern and then key in retirees’ personal data, one line at a time," writes Fahrenthold. "They work underground not for secrecy but for space." The cave contains over 28,000 five-drawer file cabinets.

There have been sporadic efforts to automate the federal retirement system over the past 30 years, but all have failed. The last failed effort cost over $100 million.  

Why can’t government fix itself? The Washington Post report targets two possible villains. The first is ineptitude—over 40% of IT procurement projects end in total failure. The botched rollout of the Affordable Care Act, by the way, falls into the 60% of partially successful projects. The second villain is the accumulation of twisted legal vines, as one interviewee put it, caused by "one hundred years of bad laws." The pension rules are so complex, with so many exceptions, that all efforts to systemize them end up blowing fuses.      

What’s the moral here? Government can’t be repaired unless the legal framework is radically simplified, as I argue in my new book (The Rule of Nobody) (April). Legal accretion guarantees failure. Imagine if you had to manage a business by following every rule or procedure that any prior manager had ever put in place.

Like the prisoners in Socrates’s cave, federal officials accept existing law as a state of nature. They do whatever the flickering complexities tell them to do, whether or not they are sensible. The subculture within the cave is devoted to maintaining the status quo—for example, public employee unions view their job as preserving the myriad perks. As in Socrates’s parable, everyone fears change. 

Solving the problem is not hard, at least not if you have freedom to invent a rational system. Paying pensions to retirees, after all, is not rocket science. What’s needed is to walk out of the cave and face our public challenges anew. It’s hard to find a government program that doesn’t need a fresh makeover. But, as failed efforts to automate pensions show, this is not a simple repair job. We must confront the magnitude of rebuilding the underlying legal structure. Almost nothing about government can get fixed without first leaving the dark bureaucratic cave, and then reconstructing law so that officials are able to meet the challenges of our new century.

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