Another View -- Philip K. Howard: The American system is paralyzed by its own lawsPHILIP K. HOWARD
May 27. 2014 10:19PM
IT’S TIME to stop taking Washington seriously. How likely is it that Congress will deal with unsustainable deficits, climate change, decrepit infrastructure, unaffordable health care, muddled immigration policy, obsolete laws, unmanageable civil service, rigged electoral districts? The list of failures of our democratic government is getting long. Responsible reform seems hopeless.
But hopelessness, it turns out, has its own political arc. Most change comes not incrementally, but in large gulps after long periods of inertia, according to political scientists Frank Baumgartner and Bryan Jones. It may look like nothing will ever change, but the pressures keep building until, all at once, like the “stick-slip” phenomenon of earthquakes, the ground gives way and a new order evolves.
Revolutions occur this way. In the United States, most major changes in social policy have occurred in tectonic shifts after pressures built up for decades, such as in the 1960s (civil rights), in the progressive era (regulation) or during the Civil War (ending slavery). The New Deal (social safety nets) differed only in that pressures of the Great Depression were more immediate.
Americans know government is broken, but a vital piece of change is missing. The widespread public dissatisfaction has no center of gravity. The Tea Party has no coherent solution — simply getting rid of most government programs is not a workable plan. Most reform groups have lost moral authority by acting like special interests, concerned only about their cause and not the broader good. Instead of coming together to promote a new order, environmentalists, budget hawks and other reformers end up competing for airtime.
What’s the new philosophy of how democracy should work? A laundry list of specific reforms is unlikely to galvanize a public movement. All the reform periods in U.S. history had a clear goal with a moral high ground, such as ending laissez faire or segregation. The major overhaul needed today also requires a clear goal that citizens can understand and get behind.
What’s gone wrong with modern democracy? Polarized politics is one villain. The rise of political extremism is apparent.
But why is it happening?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.
The most rudimentary decisions of government require moving mountains. Approving new infrastructure projects takes a decade or longer. Failures of implementation become failures of policy. Recently the White House issued a five-year report on the $800 billion stimulus plan from 2009. Part of the original goal, as President Barack Obama announced then, was to “rebuild America’s infrastructure.” So how much of that huge stimulus went to this worthwhile goal? Buried in the fine print of the report is this fact — barely 3 percent went to transportation infrastructure.
Why? The President of the United States lacks the power to approve the rebuilding of decrepit bridges and roads. In the New Deal, by contrast, Harry Hopkins had employed 2.6 million people two months after he was named head of the new Civilian Works Administration.
An aging democracy is part of the problem. Each law gets piled on top of the last one. Special education, for example, now consumes about 25 percent of the total K-12 expenditures. There’s almost no funding for gifted programs or early childhood education. Is this the right balance? No one is even asking the question. The law just evolved this way.Reviews for highway projects took an average of two years in the 1970s; by 2011, they were up to eight years. The 1956 law authorizing the interstate highway system was 29 pages. The law remaking the welfare system in 1996 was 251 pages. In this new century, statutes run a thousand pages or longer. The Volcker Rule to regulate proprietary trading — just one part of the massive Dodd-Frank law — is more than 950 pages.
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.
In concept, restoring responsibility is not difficult. Every law with budgetary impact should sunset, so that lawmakers must reset priorities and adapt to new circumstances. Most laws should be radically simplified into an open structure of goals and principles, leaving flexibility for officials to get the job done.
But the problem with too much law is that it’s the law. No one, not even the President, can get around it. Democracy can’t work until this dense legal jungle is rewritten to permit officials to take responsibility again.
Toppling this paralyzed system requires not reforms here or there but a heave-ho. Wherever you think the United States needs to go, we can’t get there from here. Let’s stop beating our heads against the wall. Our government is failing not because of bad policies but because of flawed institutional design. No one is allowed to take responsibility.
Sooner or later, this system will collapse. It’s time to form a movement to rebuild this broken structure.
Philip K. Howard is a lawyer at Covington & Burling and the chairman of the nonpartisan group Common Good. His new book is “The Rule of Nobody.”