In an excerpt from his new book, The Rule of Nobody, Philip K. Howard argues that mindless legal rigidity is strangling common sense solutions to our problems.
In February 2011, during a winter storm, a tree fell into a creek in Franklin Township, New Jersey, and caused flooding. The town was about to send a tractor in to pull the tree out when someone, probably the town lawyer, helpfully 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 12 days and $12,000 to get a permit to do what was obvious: pull the tree out of the creek.
Government’s ineptitude is not news. But something else has happened in the last few decades. Government is making America inept. Other countries don’t have difficulty pulling a tree out of a creek. Other countries also have modern infrastructure, and schools that generally succeed, and better health care at little more than half the cost.
Reforms, often embodied in hundreds of pages of new regulations, are tried constantly. But they only seem to make the problems worse. Political debate is so predictable that it’s barely worth listening to, offering ideology without practicality—as if our only choice, as comedian Jon Stewart put it, is that “government must go away completely—or we must be run by an incompetent bureaucracy.”
The missing element in American government could hardly be more basic: No official has authority to make a decision. Law has crowded out the ability to be practical or fair. Mindless rigidity has descended upon the land, from the schoolhouse to the White House to, sometimes, your house. Nothing much works, because no one is free to make things work.
Automatic law causes public failure. A system of detailed dictates is supposed to make government work better. Instead it causes failure.
The simplest tasks often turn into bureaucratic ordeals. A teacher in Chicago who called the custodian to report a broken water fountain was chewed out because he didn’t follow “broken water fountain reporting procedures.” On the first day of school he was required to read to his students a list of disciplinary rules, including this one, just to start things off on the right foot: “You may be expelled for homicide.”
Budgets are out of control because government executives lack flexibility to shave here and there to make ends meet. Soon after his election, New York Governor Andrew Cuomo thought he had found an easy way to save $50 million when he learned that a large juvenile detention center was empty, with no prospects of use anytime soon. There it was, sitting upstate, with several dozen employees—doing nothing but costing taxpayers millions of dollars. But no one had the authority to close it down, not even the governor. There’s a New York law that prohibits closing down any facility with union employees without at least one year’s notice. So $50 million of taxpayer revenue—that’s ten thousand families each paying $5,000 in state taxes—was wasted for no public purpose.
There’s a tendency to attribute ulterior purpose to the failures of government. Sleazy deals are certainly easy to find. But pay a visit to the innards of the giant machine, and mainly what you find is not calculating people trying to get something for someone, but a comedy of rules without reason.
Bureaucracy disempowers people from acting morally. Thomas Aquinas thought that people who do evil don’t think of themselves as evil. What allows evil to persist, Aquinas believed, is the “lack of good” by other people.
Bureaucracy offers a continuous narrative of public employees prevented from doing what’s right. Only in bureaucracy or horror movies do people get in trouble for compelling acts of kindness. In 2012 a St. Louis school cafeteria worker, Dianne Brame, was fired for giving food to a fourth-grader who had no money. She knew he had been on a free food program, but language barriers got in the way of his parents reapplying. “They look at that as stealing,” said Brame, whose husband had recently died, but “I thought it was just taking care of a kid.”
Even matters of life and death are sometimes asked to yield to the rigid imperatives of a clear rule. In 2012, Florida lifeguard Tomas Lopez was fired for leaving his designated zone on the beach to rescue a drowning man just over the line. “On radio I heard Tommy saying ‘I’m going for a rescue but it’s out of our zone,’” said another lifeguard, who added that the “manager told him not to go and to call 911.” Lopez said he couldn’t just sit back, and was prepared to get fired, adding, “It wasn’t too much of an upset, because I had my morals intact.” After publicity about the incident, Lopez was offered his job back. He declined.
Incidents like these are the result of deliberate design, not just the bad values of the particular supervisors. Professor William Simon described how the welfare reforms after the ’60s ended up creating a heartless bureaucracy explicitly designed “to alienate the worker from the purposes of the norms she enforces.”
In one case studied by Professor Simon, the benefits to a recent Cuban refugee were terminated because she had failed to procure a letter of enrollment from the school of one of her four children. She had enrollment letters for three of her children and, three times in the prior six months, had produced enrollment letters for all of her children. She could not secure the fourth letter as required by the rules because the school was closed in August. When it reopened, she got the letter and presented it to the welfare case worker, “who responded that it was too late: ‘There is nothing I can do.’” In fact, as Professor Simon discovered after interviewing the case worker, she meant only that the applicant needed to go to another department, which would have immediately reinstated her.
Mindless bureaucratic cruelty is a recurring theme of observers of the modern state. The incident in the welfare office could have come out of “the Circumlocution Office” in Little Dorrit by Dickens, “it being one of the principles of the Circumlocution Office never, on any account whatever, to give a straightforward answer.”
Without the freedom to act on moral values, there is not even a vocabulary for public virtue.
Let this be our motto: Just tell me the rules. In 2013, an elderly woman collapsed at an assisted living facility in Bakersfield, California, and a nurse called 911. The operator asked the nurse to try to revive the woman with CPR, but the nurse refused, saying it was against policy at that facility. “I understand if your boss is telling you, you can’t do it, but … as a human being … is there anybody that’s willing to help this lady and not let her die?” “Not at this time,” the nurse replied. During the seven-minute, sixteen-second call, the dispatcher continued to plead with the nurse: “Is there a gardener? Any staff, anyone who doesn’t work for you? Anywhere? Can we flag someone down in the street to help this lady? Can we flag a stranger down? I bet a stranger would help her.” By the time the ambulance arrived, the woman had died. The executive director of the facility defended the nurse on the basis that she had followed the rules: “In the event of a health emergency … our practice is to immediately call emergency medical personnel for assistance … That is the protocol we followed.”
America is losing its soul. Instead of creating legal structures that support our values, Americans are abandoning our values in deference to the bureaucratic structures.
Democracy Without Leaders
Most laws, when enacted, represent somebody’s vision of the public good. The public purpose of a law often evaporates, however, as circumstances change. The Depression crisis on farms, for example, had disappeared by 1941, when the onset of World War II resulted in inexhaustible demand for cotton and other subsidized crops. Generations have passed since any farmers were in danger of starving.
The need to adjust law is no different from making choices in life. To succeed, you must adapt. No law ever works out as planned, and the mismatch only grows with time.
For example, when mandating special education as an open-ended right, Congress focused on eradicating an injustice, once and for all. Now the law itself is a symbol of budgetary injustice—as one principal put it, “almost like reverse discrimination against the average kid.” Some special ed students have multiple teachers and therapy professionals devoted to them, while others demand special private schooling, sometimes costing over $100,000 per year. Special ed now consumes over 25 percent of the total K–12 budget in America, for a tiny fraction of the student population that actually needs it. By contrast, less than 1 percent of the school budget is spent on programs for gifted children, or for social services for students in disadvantaged neighborhoods. Is this the right use of scarce school resources? No one is even asking the question.
Programs that are cast in concrete will always become millstones on society. Practically every area of regulatory oversight—health care, schools, consumer safety, the environment, public personnel—is governed by obsolete legal structures. In each case, the main problems arise from unanticipated consequences of well-meaning laws—and the almost unbroken record of neglect by Congress to adapt laws to current public needs.
Congress doesn’t seem to be aware that it is responsible for how law actually works. It treats existing law and programs with the reverence of the Ten Commandments—except that they’re more like the 10 million commandments.
Getting rid of obsolete laws is not something Congress does often. This isn’t because of lack of authority. Congress can change any law it wants, within constitutional limits. But democracy has become a one-way ratchet. Congress adds programs but almost never subtracts them. Because laws on the books are mandatory, even for Congress, the practical effect is similar to the absence of authority: The people supposedly in charge of making law end up deferring to it. In the halls of policy in Washington, as well as in daily public choices, law has replaced responsibility to do what’s sensible and moral. Decade after decade, Congress has piled new laws on top of old ones.
At this point, American democracy is basically run by dead people—by past generations of legislators and regulators who wrote the laws and regulations that dictate today’s public policy, allocate most of annual budgets, and micromanage public choices. It’s not surprising that Washington works so badly. Imagine if you had to run a business by following every idea that any former manager ever had.
Philip K. Howard, a lawyer, is the author of The Rule of Nobody: Saving America from Dead Laws and Broken Government, from which this article is excerpted with permission. His other books include Life Without Lawyers: Liberating Americans From Too Much Law, and the bestselling The Death of Common Sense. He is chairman of Common Good and advises leaders of both parties on legal and regulatory reform.