How to untangle regulation and give public managers the power to decide.
Recent polling of the federal workforce suggests that morale is worse than ever. Limits on pay increases, furloughs, and the generally negative tone pervading political and media discussions of agencies and their employees surely contribute to the gloom.
But perhaps there’s another side to civil servants’ discontent: their inability to take risks, make decisions outside of strict norms, to make a difference in progress toward the common good. Perhaps they feel caught in a spider’s web of complex and detailed laws and regulations.
Analysts for centuries have perceived bureaucracies as slow, inefficient and impermeable to change. This picture emerges again in a new book from Philip K. Howard, an iconoclastic thinker and activist on improving government in the United States. Its title, The Rule of Nobody, suggests his provocative thesis: that the United States suffers not from overweening government authority but from a deficit in power to take action on issues large and small.
Howard is a lawyer, a partner at Covington and Burling in New York, versed in legal theory and with a fine appreciation for the unintended effects of accumulating law and regulation in our country--an accretion that increasingly deprives officials of the power to decide.
In all, Howard calculates, the federal government has produced 100 million words of binding law and regulations, and state and local regulators another 2 billion. And there’s little effort to make sure new initiatives fit with the old, or to discard outdated programs and rules. It’s like accumulation of sediment in a harbor, as Howard observes.
Who can understand the Affordable Care Act, whose 2,700 pages have spawned many more thousands of pages of regulations? How can banks, even with armies of lawyers, comply with the Dodd-Frank law on banking oversight, whose regulatory juggernaut has produced more than 1,000 pages just to implement what was intended as a simple dictate banning proprietary trading? The complex Medicare program is getting ever more complex, with its reimbursement categories set to increase exponentially next year, to well over 100,000.
Regulatory regimes go too far. Hemmed in by rules, teachers in the classroom can hardly discipline unruly students, cannot pat someone on the back for a job well done, and in many cases are confined to teaching to the test. It’s little wonder that parents are deserting public education for private, as in New Orleans whose school system has just converted to an all-charter model. The nursing home industry is cited as also suffering from excessive regulation, with highly detailed, prescriptive rules taking most of the soul out of caregiving.
Desperately needed infrastructure in this country is often held up because so much permitting is required and no one is empowered to give the go-ahead. A project to raise the roadbed on the Bayonne Bridge in New Jersey, key to keeping the port in business in the new era of global supertankers, is a leading example. Even President Obama, with a designation of the bridge as a key infrastructure project, could not definitively get through the thicket of reviews (resulting in 47 permits) and lawsuits holding up its progress. It’s a classic case of the Rule of Nobody.
Howard laments the condition of people whose jobs in government don’t come with the authority to make things happen. “People lose their energy when they’re forced to trudge through life just doing what they’re told,” he writes. “Centralized legal dictates make people go brain dead. People not only don’t have fun, but don’t get much done. That’s what’s happened to government employees.”
So what can be done? Howard has a sweeping vision of reform, encompassing simplification of regulatory regimes, more reliance on officials’ sense of what is right in particular circumstances, and less rote judicial review.
He suggests that Congress appoint special “spring cleaning” commissions to help recodify the law in many fields, such as education and infrastructure approval. Looking forward, he proposes that all laws with budgetary impact automatically expire after 15 years. He suggests steps to enhance presidential authority, including more latitude to deal with personnel and other management issues. To expedite decision-making, Howard would construct limits on people’s ability to bring suit without first showing illegality or abuse of discretion.
Finally, Howard makes a powerful case for institutionalizing a system of citizen oversight of the federal government. He notes that civic groups in places like New York City have attained reputations for independence, and thus the moral authority, to speak out effectively for the public good. It’s happened in Washington too from time to time. In 2010, for instance, former Sen. Alan K. Simpson, R-Wyo., and former White House chief of staff Erskine Bowles, who was president of the University of North Carolina system after serving as President Clinton’s chief of staff, teamed up to analyze the country’s fiscal issues. Their credibility ensured that the Simpson-Bowles Commission’s report would become a vital part of the ongoing debate about controlling deficit spending.
A new group, perhaps called the Council of Citizens, would be composed of distinguished citizens without regard to partisan affiliation. It could gain the moral authority to advocate long-range actions of benefit to the nation and to critique those who would “saddle society with long-term costs for short-term political gain.”
This ambitious vision might require, in Howard’s estimation, five new constitutional amendments. That is a heavy lift, but who knows, a principled appeal might form the basis for a political movement strong enough to turn another page in our evolving system of government.