February 5, 2019

How Distrust Breeds Dysfunction

America’s current governing system, created after the 1960s, dictates governing choices out of a huge legal machine, programmed with about 150 million words of federal law. Its one virtue, at least to people in Washington, is that it absolves them from having to take responsibility for how things actually work. What keeps it in place, despite its failure, is distrust.

The detail of American regulation is overwhelming, serving no public purpose other than the quest for complete uniformity even in small choices. The theory is that we thereby achieve “clear law.” But it far exceeds any conception of human scale. No one, certainly not citizens and small businesses, can keep all this regulation straight.

All this regulatory detail constantly trips people up. In February 2011, during a winter storm, a tree fell into a creek in Franklin Township, New Jersey and caused flooding. A local official was about to send a tractor to pull the tree out when the town lawyer pointed out that it was a “class C-1 creek” and required formal approvals before any natural condition was altered. The flooding continued while town officials spent twelve days and $12,000 to get a permit to do what was obvious: pull the tree out of a creek.  

Regulatory overkill is especially hard on small businesses. Indian Ladder Farms, a family-owned apple orchard in upstate New York, is subject to about 5,000 regulations from 17 different regulatory programs. The farm keeps thirteen clipboards in the office to try to keep track of paperwork and “another dozen thick binders and manuals” for the dozen or so agencies that regulate it. Many of the rules are startlingly impractical. To prevent animal feces on workers’ boots from contaminating rungs of the ladder, one regulation requires inspecting the orchard each morning to remove all animal droppings. The orchard instead decided to prohibit workers from holding on to rungs of ladders.  

Indian Ladder Farms has a clean regulatory track record, but that’s no protection against grueling regulatory intrusions. In the 2017 picking season, when the farm employed workers from Jamaica with temporary work visas, a team from the Department of Labor made a surprise inspection. The workers’ papers were all in order, but the inspectors demanded twenty-two types of reports dealing with everything from vehicle registrations to time sheets, and said they would be back the next week to review them. The farm doesn’t have a back office to speak of, so family members and other employees, in the middle of the busiest time of year, spent about forty hours collecting the material on wages, insurance, and immigration status.

At the end of the day, all the inspectors could find were a few immaterial items of noncompliance—for example, one worker was performing tasks more relating to the farm’s retail operation than agriculture. That supposedly matters because it represented a deviation from the worker’s H2A visa (a program so complicated and onerous that many farmers simply resort to hiring illegal immigrants). The inspectors levied no fines, ordered that the infractions be corrected, and, after three visits, let the exhausted family return to the busy season. The inspectors were professional, one of the family members, Laura Ten Eyck, said, but what bothered the family was the approach of showing up periodically to try to “find something wrong.” Ms. Ten Eyck said she agreed with most of the regulatory goals, but longed “for a clearinghouse that would simplify the regulatory labyrinth.”

Sensible judgments in almost every area of social interaction are constantly skewed by legal requirements. Doctors and nurses spend up to half the day filling out forms that no one reads. Teachers are told never to put an arm around a crying child. Businesses no longer give job references. Children’s lemonade stands are shut down because they neglected to secure a vendor’s license. Government takes upwards of a decade to give permits for critical infrastructure.

American government is failing because it preempts the active intelligence and moral judgments of people on the ground. At this point, obsession with legal justification has left little room for sound judgment to guide public decision-making, consistently making smart people act like they’re brain dead.

The false hope of law as an instruction manual

America’s governing philosophy began to leave the rails about five decades years ago. The tumultuous decade of the 1960s resulted in important improvements to the social contract, including civil rights, environmental protection, and product safety. Almost as an afterthought, reformers also changed how government made decisions day to day.

The philosophy of correctness was born. Law going forward would be like an instruction manual. Once law is perfectly clear, people will know exactly what to do. Bureaucrats would be more like workers on an assembly line. It’s too dangerous to let officials be arbiters of right and wrong.

In the excitement over broad purification of government, the Supreme Court soon expanded the coverage of “due process”— the constitutional guarantee against the state improperly putting us in jail or taking our property— to daily management choices in schools and agencies. Any aggrieved person had the right to challenge a decision. The onus was on the official or employer to demonstrate that the decision was proper.

This shift in operating philosophy didn’t generally make the front pages. I was in law school at the time, and pretty much everyone accepted these changes as prudent safeguards to abusive authority. Liberals were the main drivers of this new way of governing, as they were of the civil rights and environmental reforms. But conservatives saw a silver lining in detailed rules and rights. Clear lines would prevent officials from overstepping their bounds; business too could assert its rights. Who can be against “clear law” or “individual rights”?

Controlling small incidents of life was a dramatic expansion of legal reach beyond anything contemplated even by central planners. Only people who have spent their lives in a bureaucracy could think that it is helpful to mandate, as worker safety regulations do, seven pages of rules on ladders.

The idea of using law to redress ordinary disagreements in schools and the workplace soon infected the broader culture. People with a certain disposition, for example, began to threaten schools with claims that their child was treated unfairly, including over grades and extracurricular activities.

Almost immediately, Americans began to react against Big Brother breathing down their necks. A Harris poll in 1973 found that a “crisis of the most serious magnitude” was brewing in citizen dissatisfaction toward government—a stark reversal of attitudes only a decade earlier. The poll also revealed a sharp divergence between the discontent of citizens and the complacency of political leaders, who saw no serious issues with government.

In ten of the next eleven presidential elections, starting with Jimmy Carter in 1978, Americans elected outsider candidates who promised to get government off our backs. (George H. W. Bush was the sole exception, and he ran as Reagan’s successor). None have succeeded.

Looking back at decades of reform promises, there was little in the way of an overarching theory to galvanize public support in the way that, say, the rights revolution did in the 1960s, or the progressive movement did at the turn of the last century. Efforts at reform in recent decades focused on specific rigidities, and were not more broadly aimed at, say, giving people responsibility to be sensible.

At this point neither political party has any serious proposal to fix Washington. An angry public is presented with cartoon clichés of reforms that can’t possibly work. Deregulation promises amputation, but that’s not the right cure for mindless bureaucracy; voters want clean air and clean water, safety oversight, and Medicare. That’s why deregulation goes nowhere even when Republicans are in control of Congress. Conversely, trying to prune the bureaucratic jungle, as we learned with President Obama, only has marginal impact. The overbearing rules just grow back with renewed density as bureaucrats obsessively clarify each new ambiguity.

Washington needs more than reform of the current system. It needs to make government work. That requires replacing its massive bureaucracy with a simpler structure that relinks real people with public goals. That’s why Washington will resist— not only will that put officials on the hot seat, but decades of arcane expertise will go down the drain. History indicates, however, that inertial forces can only keep the lid on broad discontent for so long. Public opinion is boiling. In 2016 voters elected someone who, by background and temperament, was literally inconceivable to the political establishment. Where will voters push the needle next?

Restoring responsibility to government

What’s needed is a governing philosophy that re-empowers people to make practical choices. The parties argue about ideological abstractions when voter anger stems mainly from the stifling of sensible decisions throughout society.

Most people want to be practical in their daily encounters. We want the teacher or principal to listen to us, and have the ability to make a decision. We want elected leaders to deal with problems, and to try something else if the first solution doesn’t work. We want a workplace where people want to pitch in and expect others to do the same. Letting people make practical choices is not a radical idea, of course. The Framers embraced this practical ideal and created a framework in which Americans could pursue their dreams and live their values

Practicality requires one essential element: people must be free to take responsibility. Only a person on the spot, not a bureaucratic rulebook, can make choices that are practical and fair. That’s not possible in modern government, which is organized to dictate correct choices in advance.

The new governing philosophy we so badly need must be built on the bedrock of human responsibility and accountability. Law should set goals and governing principles, and leave implementation to people on the ground. To get things done, and feel good about themselves, people need to have more ownership of their daily choices. Their choices can be judged, but they can’t be dictated in advance without causing alienation and failure. This requires a radical simplification of government, area by area.

Under this new governing philosophy, choices can be practical. People are empowered to take into account all the circumstances. Instead of uniformity, it encourages local differences. Instead of aspiring to avoid disagreement with “clear rules” set out in advance, it encourages argument over what’s right. Instead of legal entitlements, it aspires to balance different interests. Instead of requiring objective proof, it allows people to make judgments based on their perceptions and values. Instead of judging people by legalistic compliance, it judges them by the results they achieve and their good faith.

The following principles focus on how public choices are made, not what the priorities of modern government should be. Bringing choices down to the ground will allow people to solve problems in a practical way instead of fighting over abstract theories. Studies show that people with sharply different political views usually agree on the right thing to do in a particular situation.

Each of these principles is grounded in one simple idea: People must be empowered to achieve public goals sensibly and fairly, and be accountable for how they do. Law will become a framework, and no longer be an instruction manual. For public choices, officials and citizens should be free to act on this question: What’s the right thing to do here?

Principle One: Restore Individual Responsibility. Regulatory structures must be radically simplified to provide goals, guiding principles, and a hierarchy of responsibility. The focus must be on public goals, not detailed dictates on how to achieve them. The structure must define the scope of responsibility for citizens and officials in a way that gives them ample room to achieve these goals.

Examples: Designated officials should be authorized to make decisions on permits if agencies with overlapping jurisdiction cannot agree.

Detailed rules should be used only when rigidity and uniformity are more practical than flexibility— for example, speed limits, or a checklist protocol before surgery.

Principle Two: Revive Individual Accountability. Officials must be accountable based on judgment of supervisors and co-workers, without legal proceedings except in cases of misconduct. Personal accountability is essential for a functioning democracy, and also for a healthy institutional culture. Accountability provides an essential backdrop for mutual trust; people can fulfill their responsibilities with reasonable assurance that others will do the same.

Examples: The standard for personnel decisions should not be due process, but what’s best for the common good. Government should aspire to excellence, not the bare minimum. Accountability always requires judgment, and cannot be compartmentalized into metrics or objective proof.

Overhaul civil service. Civil service should be remade to provide neutral hiring, but not tenure. Collective bargaining by public unions should be abolished on grounds that it is unconstitutional infringement of executive power under Article II of the Constitution, and also on policy grounds. Aside from supervisory misconduct, the only legal protection against termination should be review by an independent board to guard against politically motivated termination (as was provided in the Lloyd-Lafollette Act).

Use federal spending power and new legal theories to dislodge the iron grip of state and local public unions and teachers unions. States and localities should abolish collective bargaining and, instead, appoint periodic review commissions to recommend changes in compensation and work rules.

Principle Three: Bureaucracy Is Evil. Slavish attention to rules, metrics, and objective proof dehumanize government. Bureaucracy causes failure by disabling human ingenuity and willpower. Bureaucracy polarizes society by preventing people from dealing flexibly with each other and the problem at hand. Bureaucracy suffocates the human spirit in every setting, causing burnout and alienation. Bureaucracy causes unfairness by encouraging people to “game” the rules for selfish purposes. Bureaucracy is too dense to be understood by those expected to abide by it. Bureaucratic structures must be abandoned and replaced by ones grounded in human responsibility.

Principle Four: Reboot Government Programs. Few government programs work as intended. Many are obsolete. They need to be repealed or rebuilt in light of current needs, and to replace bureaucratic micromanagement with a simpler framework of human responsibility. Congress should authorize recodification commissions to propose new codes, including new agency regulations.

Examples: Create one-stop shops for small business and citizens. The multiplicity of agencies is impossible for small businesses to navigate. These one-stop shops should have the job of coordinating regulatory requirements for different businesses, such as farms, restaurants, and other small businesses.

Experiment with privatizing regulatory enforcement, with “certified regulatory experts” serving a similar role as certified public accountants.

For many regulatory goals, such as patient privacy, substitute a “rule of reason” standard instead of perfect compliance. Often people can accomplish 95 percent of the goal for a fraction the cost and diversion of energy. With health care, freeing up those human resources can achieve better health care.

Principle Five: Appoint Recodification Commissions with the Job of Proposing New Codes in Each Area. Congress can then vote a recodification proposal up or down. To avoid partisan politics to the extent possible, the leadership of Congress should appoint outside experts to nominate members of the recodification commissions.

Principle Six: Courts Must Defend Boundaries of Reasonableness. What people can sue for establishes the boundaries of everyone else’s freedom. Judges must act as gatekeepers, dismissing or limiting claims that might interfere with the freedoms of all citizens. For example, letting parents sue a teacher who restrained a misbehaving student will lead to future disorder as students correctly read the teachers’ lack of authority.

Examples: Congress should create expert health courts to restore reliability and trust in malpractice litigation. Every year, doctors waste an estimated $45–$200 billion in “defensive medicine.” The resulting lack of candor means that the quality of care is also compromised.

Congress should appoint a special committee to recommend guidelines on children’s play and autonomy. In part because of fear of litigation, child development experts say America’s children are not given the challenges needed to learn how to be resourceful as adults. In the words of one expert, we are creating a “nation of wimps.”

Principle Seven: Reorganize Congress. Congress has abdicated its responsibility to oversee whether laws and regulations are serving the public good. Changes include giving committees authority to amend programs when certain conditions are met; sunsetting all laws with budgetary impact, and requiring a public report by an independent body before any program is reauthorized; and giving Congress authority, by constitutional amendment if necessary, to veto agency regulations created under statute.

Principle Eight: Give Communities Ownership of Local Services. Federal mandates for schools and social services should be turned into broad principles, with leeway for communities to provide the services in their own way. Special education, for example, is notoriously bureaucratic and leaves little room for balancing the needs of all students. Letting people make a difference in their own communities will awaken citizen commitment to the common good.

Principle Nine: Move Agencies out of Washington. The bureaucratic culture of Washington is so inbred that it is unlikely that most people there can adjust to taking responsibility to achieve goals. In the age of instant communication, there is no reason why most agencies should be in Washington. Combined with breaking apart the monopoly of civil service, moving agencies will allow government to be run by Americans not afraid to take responsibility.

Principle Ten: The Litmus Test for Public Choices Must Be the Common Good. Every public dollar involves a moral choice: spend it on an obsolete subsidy from the New Deal, and it is not available to provide prenatal care to an underprivileged mother. Rights have become a synonym for selfishness. Constitutional rights should return to their role as protecting freedom against state coercion, not a tool of coercion for one person over another. No one should have rights superior to anyone else.

Tilting at windmills?

There’s a lot to talk about here, but the first hurdle is to convince you that proposing a practical governing philosophy is itself a practical exercise. Washington, we all know, is not exactly responsive to voter needs. It can barely pass a budget, much less overhaul its governing structure. Its defective approach to governing is compounded by a vacuum of leadership. It is unlikely to fix this problem. Change will only come from the outside. Historic shifts in our governing structure always require overwhelming public pressure—as, for example, in the Great Depression or the civil rights movement in the 1960s.

Public demand for a new governing philosophy can impact the culture long before the structures collapse of their own weight. Values have their own power. Having a principled basis for practical decisions may inspire people to make them. It will provide a vocabulary for dealing with daily idiocies in schools, hospitals, and government. Today people are awash in endless rules and legalisms, without any principled basis for getting to a reasonable solution.

Find any good public program, or, indeed, any successful enterprise, and you will see people who make choices based on what they think is right and sensible— not rote compliance. Embracing a public philosophy of practical responsibility will bring these outlaws out of the shadows and up on a pedestal of legitimacy and honor. It will encourage others to follow their lead. Americans can act like Americans again.

A new philosophy will also inspire a new generation of political leaders with a clear vision for change. Today, no leader has any credible way of explaining public failures, much less fixing them.

Am I just tilting at windmills? I’ve written about the failures of modern government in my prior books, and, in The Rule of Nobody (2014), described how a rigid conception of the Rule of Law removes the human authority needed to make common choices. The unintended effect is gridlock throughout society. I wrote that a voter backlash against the overbearing and mindless bureaucracy was inevitable.

Now that the backlash has started, America needs a new vision of how to govern. The parties have left behind a vacuum that will be filled by something. Waiting for someone else to fill that vacuum is perilous. The time to act is now.

Philip K. Howard is a lawyer and commentator on law and bureaucracy. He is the founder of Common Good and the author of numerous books. This essay is adapted from his most recent book, Try Common Sense, published in January 2019.