RESPONSIBILITY IN WASHINGTON
In the 1970s a man from Sacramento named Pasquale Plescia took a bus to Washington to figure out why his Social Security checks were delayed and usually in the wrong amount. His story was picked up in the Los Angeles Times.
“I mean, this where the people are who run the show, right? . . . You ought to be able to get one little problem fixed up. . . . Well, I’ll tell you something about this town. They’ve got a secret language here. You know that? Bureaucratese. Same thing we used to call double-talk. These government people, they don’t hear you. They don’t listen. You start to say something and they shut you out mentally, figuring they know right away what you’re going to say before you say it.
“I knocked on doors here for two weeks but everyone’s so busy with paperwork, they got no time for nothing else. I go to see one congressman—a priest, so I figure he’s got humanitarian interests—and his aide says I’ve got to write him a letter first. . . . Another gives me a press release, and says, ‘this is the Congressman’s position on Social Security.’ No kidding, that happened. So I go down to HEW [Department of Health, Education, and Welfare]. They’ve got 130,000 people working for HEW, and you know what? They’ve got nobody to make a complaint to.”
Responsibility is a rare commodity in Washington. It’s hard to identify anyone who will actually accept the task of dealing with your problem. Most businesses hire a lawyer who is a specialist in the area and can guide them through the bureaucratic caves and tunnels. Once the right official is located, however, chances are he will open up the rulebook and say they can’t do it for this or that reason, unless you trudge through months or years of legal processes. Social Security recently had a two-year backlog on disputes over disability payments, causing some recipients to sell their homes to make ends meet while they waited.
Responsibility in government is even rarer at the highest levels of public policy. Washington is on cruise control, just going in whatever direction it was headed toward yesterday, adjusted slightly in response to daily headlines or special interest influence. Congress has the job, for example, of making sure regulatory schemes enacted in prior years actually deliver on the original goals. But it hasn’t fixed the well-known problems of special education laws. Nor does Congress take responsibility for the future. Who is responsible for the burgeoning national debt? I guess it’s our children.
Congressmen look out their windows at the huge regulatory edifice they’ve created over the years and throw up their hands. Instead of tackling the problems caused by ineffective laws or unforeseen circumstances, most seem to spend their days receiving constituents and special interests, acting as a complaint bureau and dispensing largess to the well connected.
Washington presents a harder problem than anything I’ve discussed so far. Some of the work required to restore our daily freedoms can probably be done without restoring a culture of responsibility to Washington; judges, for example, could start drawing the boundaries of lawsuits. We might even be able to mount pressure to pass specific reforms, say, to overhaul special education laws. But many of the changes require major shifts in legal structure. Government must take a fresh look at how its laws work in practice, and what our society needs. That’s what democracy is supposed to do. But that’s not what’s happening in Washington.
The disconnection between Washington and the rest of America has many causes, some inherent in the nature of government, some caused by our own unrealistic demands. But the mechanism by which government has slipped away from our democratic grasp is too much law. Law has replaced responsibility.
If teachers, doctors, managers, and the rest of us wade through law all day long, people in government are submerged in law. Officials are taught to comply with the rules and follow the process, not solve the problem in front of them. That’s why the results are so often idiotic.
In response to Hurricane Katrina, FEMA went out and cornered the market on mobile homes and trailers, spending over $400 million for 19,000 units. Unfortunately, most of them could not be used because they did not comply with rules against mobile homes in floodplains. Instead of waiving the rules so that people could have places to live, they were stored at an abandoned airport in Hope, Arkansas. In 2007 a tornado in another part of Arkansas left 150 families homeless, and someone suggested sending some of the mobile homes to help out. This humane use of otherwise useless property was also blocked by a rule—FEMA could provide help only to places designated as a “federal disaster area.” This is the government we’ve learned to hate—lurching here and there, like a badly designed robot, doing the wrong thing at the wrong time.
Detailed regulation is generally a formula for failure. The detail acts as a straitjacket, removing the authority to adapt to new circumstances and unintended consequences. The No Child Left Behind Law, for example, contains 670 pages of dictates, plus hundreds of pages of implementing rules by the Department of Education. The backfires can be heard across America. The requirement of “highly qualified” teachers, as seen earlier, often excludes good teachers while rewarding bad ones just because they went to graduate school. “Through the eyes of the people in Washington, DC I was unqualified.” Jon Runnalls said after receiving the Montana Teacher of the Year in 2003. The sanctions for failure to meet “annual yearly progress” has prompted educators to put children across the land onto a kind of forced march on a testing treadmill. “Everything is test, test, test,” bemoaned a teacher in Alaska. Officials in Washington charged with enforcing the law also see the inanities. But they don’t have the power to alter these requirements of No Child Left Behind. It’s the law.
There’s hardly an area of society that isn’t knocked off-balance by the unintended consequences of some inflexible regulatory scheme. Doctors and nurses go through the day negotiating a regulatory minefield. In 1996, for example, Congress passed HIPAA (Health Insurance Portability and Accountability Act), which includes provisions mandating privacy of patient information. Privacy seems like a worthy goal, but at what cost? Just the added bureaucracy for each patient adds over $1 billon to annual costs. That’s the least of it. Self-consciousness about blurting out a patient’s name is now added to other legal fears, as doctors worry about how to “talk to and about patients.” Quality of care suffers as doctors will “no longer discuss treatments among themselves via email.” Research on heart attack recovery at the University of Michigan slowed to a crawl when only one-third of the sample bothered to complete the necessary HIPAA paperwork.
Impairing open interaction among health care professionals inevitably leads to tragedy. In mental health, for example, a patient often can’t make sensible judgments for himself. Yet because of HIPAA and other privacy laws, doctors and school officials feel unable to communicate to parents about a suicidal child. The right to privacy, like due process in schools, has taken a life of its own, supplanting the benefits of in loco parentis with a debilitating self-consciousness. Seung Hui Cho, the disturbed student who killed thirty-four students at Virgina Tech in 2007, had a record of frightening conduct that would have been of gravest concern to both his parents and school administrators, but they weren’t told because of concerns about his right to privacy. What makes these unintended consequences so frustrating is that medical privacy is not exactly the big problem in America. Other than the general principle of confidentiality (which existed before HIPAA), I suspect most patients couldn’t care less; HIPAA is just another variation of the warnings that litter our daily landscape. Sign your name, sign your name, sign your name, dutifully take the required copies, and then sit down and wait for the doctor. “By now it likely has a shopping list scrawled on it,” one patient observed.
The failures of HIPAA, and No Child Left Behind, and hundreds of other laws are not a secret to members of Congress; they hear complaints all day long. But they don’t feel they can do anything about it. Fixing old laws requires the same process as passing new ones. A congressman can’t change the law, at least not without getting 217 colleagues and 60 senators together. An agency head can’t change the agency’s own rules without going through a years-long process of judicial review. The steady accretion of law and process makes choices ever slower. “It used to take a few months for EPA to set effluent guidelines for clean water,” environmentalist Peter Lehner observes. “Now the processes go on for years.”
Washington has slowly sunk into an ocean of law, rules, and processes, most created in the past forty years—over 100 million words of binding federal statutes and rules, with more added every year and almost none ever taken away. You may like the idea of tight legal controls over bureaucrats—no official can do anything without swimming through years of legal processes. But inertia in government is costly. It’s hard to change priorities, or fix what doesn’t work. The legal detail perpetuates failure while also insulating Washington from democratic accountability. Washington is a veritable Atlantis, operating in its own strange ways for its own goals, separated from the rest of America by fathoms of law.
Down in these depths of law, Washington has developed its own culture. There is a separate language, as Mr. Plescia discovered, with acronyms and phrases that are unintelligible except to those steeped in bureaucracy. Professor Ralph Hummel refers to these as “one directional words—words whose meaning is controlled by the speaker” and therefore not accessible to normal people. Washington operates toward different goals as well, focusing on appearance rather than accomplishment. One business leader, nominated for a subcabinet post by President Clinton, had this to say after getting caught up in a confirmation battle having nothing to do with his own conduct: “I’m an air-breathing animal and I somehow jumped into the deep end of the pool and I—I’m not able to grow gills fast enough. It’s such a different environment.”
A kind of rule stupor settles in. Professor Steven Kelman, who was in charge of procurement reform for Al Gore’s reinventing government initiative, describes a contracting official who had been trained to try to be absolutely neutral among different bidders: “He told me proudly . . . about a bidder with whom the IRS had had terrible experience but [he] was careful not to tell anyone on the panel so as not to bias the evaluation process.”
People in Washington like the culture of rules. All the law is a barrier to entry to outsiders. Rules appeal to the risk-averse side of human nature. Rules provide almost foolproof cover—who can blame you if you’re following the rule? Rules relieve people of the need to think. All the law acts as a barrier to entry, insulating insiders from democratic accountability. They can relax in the caverns of rules instead of worrying about results. People are “mightily addicted to rules,” the Scottish philosopher David Hume noted.
Periodic efforts to control government with more laws just make the problem worse. Trying to control bureaucracy usually creates more bureaucracy. Professor Paul Light calculated that there are now as many as thirty-two layers of federal officials between the person doing the job and the person on top. (The rule of thumb for well-run companies, by contrast, is five layers.) Laws designed to prevent corruption have the effect of thickening the cover of bureaucracy in which corruption can thrive. As Michael Reisman points out in his book on bribery reforms, “the very complexities and time-consumption factors introduced by a red-tape control system . . . create new incentives for bribes.”
The problem is in the premise—that law should tell people how to do things. Making detailed laws is like pointing a car in one direction and leaving the passengers in it without the power to turn the wheel when they hit a curve. Sooner or later the car drives off a cliff. “Each fresh law,” as the anarchist Peter Kropotkin wryly put it, is “a fresh miscalculation.”
There was a time, at the beginning of modernism, when smart people thought that efficiency required treating people as mindless tools. Sociologist Max Weber bemoaned the antihuman aspects of systems where each person “is only a small cog in a ceaselessly moving mechanism” but thought that this was the price of efficiency: “Bureaucracy develops the more perfectly, the more it is ‘dehumanized.’” Weber was wrong. Systems have their place, but a human is always the core.
For decades we have been working feverishly to create a legal regime that minimizes official flexibility—detailed rules, and then rules to explain the rules; open-ended rights, and then litigation to keep expanding the scope of the rights. America developed, historian Henry Steele Commager said, an “almost lawless passion for lawmaking.” We succeeded in replacing human authority with law. Responsibility disappeared in an ocean of inflexible legal detail and uncontrollable rights.
It’s hard to know when responsibility finally slipped out of sight in Washington. Legislators from the 1980s such as Howard Baker and Alan Simpson swear it has gotten far worse since then. But the bottom line is clear: Washington isn’t doing its job. If the federal government were graded on its “annual yearly progress,” as it demands of schools, funding would have been pulled long ago. Its worst feature is not ineptitude. Some agencies do their jobs well, and most muddle along, although usually in the wrong direction. Washington is far worse than inept—it is irresponsible.
Washington no longer cares about what’s really needed in our society. It takes no responsibility for the future. It takes no responsibility for laws it has enacted in the past. It has taken a life of its own, pursuing goals that have little or nothing to do with the good of the country. In the depths of endless law and bureaucracy, the worst traits of politics have been allowed to fester, throwing off the unmistakable odor of greed and hypocrisy.
THE PROFILE OF AN IRRESPONSIBLE CULTURE
A couple of years ago I had a meeting with a Democratic leader in the House of Representatives to discuss better ways of handling medical malpractice disputes. A broad coalition of patient groups as well as providers had come together behind legislation that would authorize different pilot projects. Major editorial boards had endorsed the plan. There was (and still is) a crisis of confidence in health care justice. It’s hard to object to a pilot project; why not see if something new might work better? This congressman said that it sounded like a constructive approach. Our dialogue then went as follows. “How do the trial lawyers feel about it?” “They hate it,” I said. “Half the cost of medical malpractice goes to lawyers’ fees.” “We can’t do it then,” he said. “But the patient and consumer groups are for it,” I reminded him. “Who do the trial lawyers supposedly represent?” “It doesn’t matter,” he said. “We can’t support it if the lawyers are against it.” End of meeting.
Not long after this, I met with a senior political adviser at the White House on the same subject. This would be a bipartisan breath of fresh air for President Bush, I argued. Just imagine the presidential press conference on the South Lawn with groups like AARP and former Democratic leaders like Bill Bradley supporting this initiative. This senior adviser acknowledged the political appeal of a bipartisan initiative but said that the president had decided to pursue a bill that would just put caps on medical damages, basically limiting pain and suffering damages awards. “But limiting damages won’t restore trust that justice will get to the right decision,” I argued. “Yes,” he said, “I understand that. But that’s what we’re pushing. It’s something the public can understand.” So I asked what the odds were of damage caps actually getting enacted. He leaned back and reflected and said, “Oh, about one in a hundred.” “That sounds right,” I said, “so why doesn’t the president try something that maybe has bipartisan support?” He then launched into a discussion about the “broader benefits” of advancing a bill that he knew wouldn’t pass. I’m so naive that what he was saying didn’t sink in until it was explained to me by junior staffers: The president was pushing a reform that he knew wouldn’t pass—so that he could then blame the Democrats for not solving the problem.
I don’t happen to believe in the death penalty, but these discussions tempt me to reconsider. It strikes me as a form of treason that senior officials in our democracy—one elected and one reporting directly to the president—view the crisis in health care as just another opportunity to make the other side look bad.
But this is business as usual in Washington. For years, for example, Democrats have been trying to get ratification of environmental treaties on POPs (persistent organic pollutants) and PICs (a requirement of “prior informed consent” before hazardous chemicals can be shipped). In 2007, after years of stalling, the Republicans finally announced a willingness to sign on. Now the Democrats refused to back it. Why? They didn’t want the Republicans to look good on the environment. The Environmental Protection Agency has never been elevated to cabinet status, despite proposals to do so by both sides, because neither party wants it to occur while the other is in the White House.
Cynicism in politics is not new to our time. The challenge is to make it costly by holding the practitioners accountable. That’s how we combat cheating and other vices. Competition in democracy is supposed to keep political leaders focused on serving the people, just as competition in the marketplace keeps large companies from becoming sluggish. But those democratic forces aren’t working anymore. “[W]e have gradually developed governmental a institutions,” economist Milton Friedman observed, “in which the people effectively have no voice.” That’s mainly because officials themselves have no voice. Democracy is paralyzed by its own inflexible laws and rules. Responsibility died through a form of democratic suicide—instead of self-immolation, it’s self-immobilization.
Americans have pretty much given up on Washington. Even critics can’t maintain their sense of outrage in the face of years of continuous frustration. Jonathan Rauch, a keen observer of special interests in Washington, recommends managing the ulterior motives as best we can. But the situation is not stable; the more we tolerate, the worse it gets. The growing cynicism about Washington by the citizenry ironically makes it easier for insiders to be openly cynical. “Yes, isn’t it terrible how partisan things have gotten . . . but that’s the way it is.” Winks and nods become explicit. Just as bureaucrats follow rules instead of trying to achieve goals, politicians play politics all day long.
Washington has become a land of political make-believe. The point is not governing but winning. Success is measured not by policy improvements but by how many political traps you’ve set to embarrass the other side. Posturing is the main activity. Members of Congress hold hearings on scandals or other matters of public interest so that they can give campaign speeches on camera that typically play to their “base” of supporters. Hearings on steroid use in professional sports, for example, don’t have much to do with public policy. So prevalent is the practice of speaking just to have a highlight reel that most speeches on the House or Senate floor are given to an empty chamber. Their congressional colleagues know that nothing important is being said. “We used to fight hard in the campaigns, and things could get rough,” former Senator Howard Baker observed, “but once we were in office we worked together to govern. Now the campaigning never stops.”
The constituents in Washington are not mainly the folks back home; a little pork and constituent service will usually take care of them. The important constituents are the special interests that provide the resources for political campaigns. Interest groups have extensive mailing lists that can be used to support or oppose candidates and issues. Unions can turn out thousands of campaign workers. Wall Street firms can fill a room with people each giving the legal maximum. In an age of campaign finance regulation, with limits on contributions, special interests can effectively bundle hundreds or thousands of separate supporters.
In return, special interests ask only one thing: The political leader must look out for their particular cause. What that usually boils down to is preventing any change. The most powerful interests have only one issue. The trial lawyers care only about preventing any legislation that curbs lawsuits. The National Rifle Association has only one mission—preventing legislation that limits gun ownership. Groups like these focus all their resources on preventing change. Intense pressure, almost unimaginably relentless pressure, will be concentrated on any politician or regulator who even considers some unwanted change in law. The phone will be ringing off the hook with big contributors, best friends, large employers, all somehow now devoted to preventing any change. Once you get in the grips of one of these groups, it’s almost impossible to get away. Breaking ranks from a special interest is like trying to leave an organized crime family—it doesn’t just lose their support. You become the target of their fury. Senator Jay Rockefeller learned the hard way when he tried to champion legal reform in the late 1990s. “He’ll never make that mistake again,” one staffer told me.
Just as bureaucracy has its own language, the political rhetoric of Washington can be decoded into special interest obligations. Most Democratic politicians I know believe that lawsuits have gotten out of hand. But they would never say it publicly because that would offend the trial lawyers, the party’s second-largest source of campaign funds. Instead politicians stand up, without so much as a blush, and deliver self-righteous speeches about preserving the “right to sue.” The hypocrisy is sometimes breathtaking. Republican candidates who spent their entire careers as pro-choice all of sudden believe in the right to life when running for president. Democrats who supported the North American Free Trade Agreement (NAFTA) make overturning it the focus of their campaign rhetoric, at least in states with high unemployment.
Most special interests are not evil or venal. They represent legitimate constituencies that are important to the fabric of our society—for example, the American Medical Association, the Chamber of Commerce, and the Sierra Club. You would think that they might join together for reforms that benefit all society. But most interest groups, like politicians, are tied to their “base” and do not venture beyond a narrow agenda of self-protection. Medical associations stubbornly resist any effort at regulatory oversight over doctors, for example, even though that might make it easier for them to achieve other legislative goals. Environmental groups oppose any push for nuclear power—so, by default, power companies meet demand by burning more fossil fuel. “Many interest groups would rather push their point of view and lose,” observed Rod DeArment, former chief of staff to Senator Bob Dole, “than go out on a limb by negotiating a compromise.”
As long as there has been organized government, people have tried to manipulate it for their own purposes. Kings were surrounded by sycophants. Abraham Lincoln was surrounded by job seekers. President Garfield was assassinated by a campaign worker disappointed that he hadn’t gotten the job he deserved. Our founders knew that government was a magnet for self-seekers, but thought, as Madison wrote in The Federalist Papers, that these “factions” would neutralize each other, and that the general interest would emerge in a competition. But Madison proved incorrect. There’s no competition for the greater good—there’s an exhausting queue of group after group demanding pounds of flesh from the common weal.
Special interests do not run Congress, at least not in the sense of directing public goals—they could never agree on priorities for running the country. Indeed, other than tax exemptions or pork barrel favors, special interests rarely succeed at getting favorable legislation. But they have a hammerlock on the status quo. Passing a law is hard enough in the best of circumstances. Now think about herding all those congressional cats together to amend what’s wrong with a law—who will get headlines for that thankless task? Then some special interest puts its boot on your neck to protect a legal provision that it considers an entitlement. That’s why, once a law is enacted, it acquires an almost invincible stature. Repairing No Child Left Behind, for example, is sure to offend schools of education, which want to keep teachers going to grad school to be certified as “highly qualified.” Just raising the idea of reforming special education will trigger an explosion. Special ed advocates don’t focus on abuses of the system—they want to preserve as many rights as possible. That’s how they see their job, and they’ll chain themselves to the senator’s desk, screaming all day, to keep those entitlements.
Special interests sometimes come to dominate the goals of agencies, as the defunct Interstate Commerce Commission used to protect the trucking industry. But the phenomenon of agency “capture”—where the foxes take over the henhouse—is overblown, in my view. Many agencies are confronted with conflicting interests—for example, the tension between cable operators and telephone companies at the Federal Communications Commission—and the agency has to make a choice. What special interest groups can do with agencies is prevent them from acting, either by inundating them under expert reports or, more efficiently, by just calling up Congress. At one point in the 1990s the Occupational Safety and Health Administration wanted to issue guidelines—not even enforceable rules—on how better to protect clerks at convenience stores from crime. “I received 128 letters from members of Congress expressing outrage that I would even consider such a thing,” Joe Dear, the former head of OSHA, observed, “all put up to it by the convenience store association. The proposal was dead on arrival.”
It is hard to overestimate the power of the status quo in Washington. Farm subsidies were originally enacted in 1933 to relieve the suffering of farmers, who then constituted 25 percent of the population. Today farmers constitute only 2 percent of the population and have incomes higher than the national average. Yet seventy-five years later the farm subsidy continues. Even more illogically, the subsidy is awarded to only a certain category of large farmers, basically growers of corn, sugarcane, and wheat and other grains. Many of these farms are corporate enterprises.
Almost no one outside Congress defends this subsidy. Why is it fair to subsidize large sugar and grain combines while leaving out those who grow fruits and vegetables? By driving up production, the subsidies drive down prices and make it hard for farmers in the third world to compete in world markets. Government subsidies also violate our obligations under a host of free trade treaties. Why do we want to give $10 billion in taxpayer money to rich farmers? Aren’t there better ways to use the money? That’s enough money to provide health insurance for three million people.
No one can kill the farm bill, however, because the large corporate farmers have the undivided loyalty of midwestern legislators who will do anything, it seems, to preserve this flow of government largess. Other legislators need the votes of these midwestern representatives for their own pet interests, so year after year they hold their noses and vote for the farm bill. “If government waste were an art form,” columnist Robert Samuelson observed, “the farm bill is the Mona Lisa.”
The harm caused by special interests is not mainly pork barrel abuses—that at least has quantifiable limits—but the inability to govern. The special interests circle overhead, ready to swoop down at the earliest hint of change. Members of Congress know where it’s safe—the status quo. The pattern of modern politics is all too clear: Talk about reform in campaigns, and then do nothing. Reforms that affect the powerful interests—improving legal reliability, reining in entitlements, holding public employees accountable—are not seriously considered. That’s why neither of the officials I spoke with had any interest in pursuing medical liability pilot projects. They know that change is almost impossible. This is Washington.
The public sees the inaction and self-interested grandstanding, but doesn’t know what to do about it. The longer this continues, the harder it is to fix—acting responsibly means owning up to hard choices and overdue debts. I had a long discussion one day with a senior Republican senator about how polarized and self-interested politics had become. He frankly admitted, “We don’t know how to break out of this rut.”
Every major political figure in the past thirty years has vowed to curb special interest power and get Washington back on track to serve the public. In his “malaise speech,” Jimmy Carter said:
Washington . . . seems incapable of action. You see a Congress twisted and pulled in every direction by hundreds of well-financed and powerful special interests. You see every extreme position defended to the last vote, almost to the last breath by one unyielding group or another.
Similar sentiments have been echoed since then by Ronald Reagan: “Our concern must be for a special interest group that has been too long neglected. . . . They are in short, ‘We the People’ ”; George H. W. Bush: “The time has come to put the national interest ahead of the special interest”; Bill Clinton: “I know that facing up to these interests will require courage”; Newt Gingrich: “Elected officials have become so entrenched and protected that they are unresponsive to the public they were elected to serve”; and George W. Bush: “The federal budget has too many special interest projects.” Through all these administrations, Washington has only sunk deeper into the swamp of bureaucracy and special interests.
What’s needed is not a Herculean push to fix this law or that. We could spend ten lifetimes doing combat with special interests to fix all the lousy laws on the books. What we need to do is abandon the system. We must walk away from the heavy weight of accumulated laws, each in the grip of special interests, and create anew a government focused on goals and personal accountability.
REWRITING WASHINGTON
When institutions lose their sense of purpose, the only solution is to shake them up and start afresh. “A little rebellion now and then is a good thing,” Jefferson wrote to Madison in 1787, “and as necessary in the political world as storms are in the physical. . . . It is a medicine for the sound health of government.”
To implement the programs of the New Deal, FDR basically gave up on existing agencies and instead created more than sixty new departments. The Civilian Conservation Corps, the program to organize the unemployed to build public works, was authorized by a statute that was barely five pages long, delegating authority to a director and providing funding. Three months later, over 250,000 Americans were employed. Washington Monthly founder Charles Peters, an astute observer of bureaucratic failure, recalled the excitement of working in the early days at the founding of the Peace Corps: “We had no rules. We ran around in our socks figuring out how to get this going, and, by God, we did it.”
Government today is organized to minimize official discretion. Friedrich Hayek, no advocate of big government, observed that America no longer had a government “under law” but a government shackled by countless legislative mandates—instead of general rules, statutes became mere “directions.” Without freedom by officials to take responsibility, government lost the ability to account for “the immeasurable multitude of particular facts which must determine the order of its activities.”
Absent a powerful intervention, creating a new model of governance, the culture of Washington will not change. “Our system of managing in the public sector,” Professor Steven Kelman concludes, “may rob the people in it of their faculties to such an extent that, like a person on a mind-numbing drug, they no longer even realize that they are missing anything.”
America needs to rewrite its legal and regulatory codes. Bulldozing is not too strong a term. Most of the laws and rules long ago lost their connection to real problems and real people. They exist not because they do the job but because . . . well, because someone once took the trouble to write them. Our political leaders might as well be security guards in an archive of failed ideas—detail for its own sake, processes designed to remove responsibility, elaborate logical constructions to reconcile unnecessary prior logic. The HIPAA rules governing medical privacy, for example, presume that any disclosure is invalid unless it satisfies enumerated bureaucratic criteria. Doctors can’t internalize the regulatory jargon, and so many, perhaps most, have no idea where the boundaries are.
The first organizing principle of government should be to have clear goals, and to designate persons to take responsibility to accomplish those goals. For democracy to function, we must have a direct line between our public goals and responsible officials in Washington.
Responsibility in turn requires giving officials the authority needed to do the job. Law must set boundaries to establish the goals and powers of the responsible official—otherwise the power is arbitrary. But the boundaries must also leave ample room for flexibility—otherwise the bureaucratic rigidity will force solutions that make no sense. Perhaps the most important function of boundaries is to provide a clear hierarchy of accountability—that’s how we keep officials honest.
The second organizing principle of government, helping to keep officials focused on public goals, is that law should consist (generally) of general principles. The Constitution, a document that occupies barely ten pages in the United States Code, refers to “life, liberty or property” without trying to define exactly what that means. The common law that we inherited from England consists of general principles, such as the standard of behavior “to behave as a reasonable person would in the circumstances.” In both cases, the principles are given life by judges. The Uniform Commercial Code, which governs most contractual arrangements, sets protocols for contractual arrangements, but ultimately also hinges on obligations of “commercial reasonableness” and “good faith.”
Law based on general principles marries legal goals with personal responsibility. Principles are comprehensible because they state an aspiration—say, reasonable care for the disabled. Principles are adaptable—as a result, there is an opportunity by the responsible official to balance competing circumstances. Principles offer more consistency, studies show, than the supposedly uniform “command and control” dictates—this paradox is explained by the leveling influence of common sense. The most important virtue of law based on principles is that it allows us to judge officials by their actual results—not by compliance with rules. Detailed rules have their place, especially where uniform protocols are needed—say, speed limits or building codes. Guidelines can also be useful, but as with criminal sentencing, there must be room for flexibility to account for the circumstances. Principles are alive. Rules ossify.
Our founding fathers recognized both the impulse and the mistake of Congress’s trying to dictate actions by officials. The discretionary power of the government officials was a hotly debated point at the Constitutional Convention. Some feared that the executive would run amok. But others, led by Alexander Hamilton, prevailed with the argument that individual responsibility not only is the practical way to get things done but is also the safest course because it permits accountability.
Within weeks after George Washington was inaugurated in 1789, the issue came to a head again: Did the president have the power to remove officials without congressional approval? In the debates in Congress, James Madison restated why locating responsibility in the executive was essential to accountability:
It is one of the most prominent features of the Constitution, a principle that pervades the whole system, that there should be the highest possible degree of responsibility in all the Executive officers thereof; any thing, therefore, which tends to lessen this responsibility, is contrary to its spirit and intention. * * * If the President should possess alone the power of removal from office, those who are employed in the execution of law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, and the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community. . . .
The early days of the Republic showed that administrative discretion was unavoidable in almost every regulatory and fiscal activity. Whether property should be forfeited for failure to pay tariff duties, for example, was a decision that could be subject to judicial review but could hardly be laid out in statutory form. As Hamilton put it, this was “a power of too much delicacy and importance to be determined otherwise than upon mature deliberation.” Hamilton was an unabashed advocate of executive power, but even modern philosophers skeptical of regulatory power acknowledge that responsible government necessarily involves human choice, not rote compliance. “At every stage of the governmental hierarchy,” Hayek observed, “considerable discretion must be granted to the subordinate agencies.”
Undertaking this project to radically simplify federal law would certainly shake things up in Washington. But the goal, in truth, is pretty unrevolutionary—to let government accomplish its goals. Restoring personal responsibility is hardly a new idea—it’s the only way anything works. Look at any successful government agency or program, and you will find officials who, with or without authorization, take personal initiative to meet the public goals. At the Securities and Exchange Commission, for example, every public offering of securities is reviewed by an SEC official, who gives comments to the issuer and then engages in a back-and-forth to work out differences in view. The official has the flexibility to deal with unique situations as they occur, and the process between lawyers generally results in sound disclosure. When the mortgage market collapsed in the fall of 2008 (caused in part by the absence of regulation), decisive actions by the Federal Reserve chairman and the secretary of the treasury, committing unprecedented sums overnight to shore up illiquid markets, are widely credited with averting what might have been a devastating financial collapse.
Public goals, no less than private goals, require human judgment for successful implementation. The antitrust prohibitions against monopolization and price-fixing, enacted in the trust-busting era of Theodore Roosevelt, are contained in a grand total of two paragraphs. The record of the antitrust agencies (the Antitrust Division of the Department of Justice and the Federal Trade Commission) is mixed. But few people doubt the integrity of the agencies, or their independence from special interests.
With a little leadership, even rule-bound agencies can break free and advance toward public goals. In The Death of Common Sense, I was highly critical of OSHA. Inspectors would visit factories and issue scores of violations for infractions that had nothing to do with safety, like having railings that were 41 inches high instead of the required 42 inches, or not posting a hazardous substance form on how to use Windex. As part of Al Gore’s reinventing government initiative, however, OSHA undertook to reform itself. A regional administrator in Maine, Bill Freeman, invented a program that replaced “gotcha” inspections with voluntary safety plans, devised by employers in conjunction with OSHA, that focused on actual safety instead of rule compliance. When Al Gore tried to scale it up nationwide, the plan didn’t work as well; success seemed to hinge on Freeman’s relationship with the Maine business community. But Gore’s goal changed the agency’s mind-set. OSHA administrator Joe Dear devised another program, focusing on accident rates industry by industry. When a safety analyst at OSHA noticed a spike in accidents in home building, an OSHA director worked with the Home Builders’ Association to develop a program that reduced those accidents. Focusing on the goal of safety, not the rules, was the key to effectiveness.
The power of government scares us, as it did our founders. But history has proved that Madison was correct—the best safeguard is to shine a bright light on the individual with responsibility. Prosecutors, for example, hold more power than anyone. Criminal laws are written in such a way that, as one judge said, you “can indict a ham sandwich.” But people aren’t usually sent up the river for minor infractions, because prosecutors generally exercise their discretion in a way that passes the smell test of reasonable fairness. Prosecutors don’t abuse their power because we know who the prosecutor is, and we can see whom he is indicting. The occasional prosecutorial scandals—for example, the rogue prosecutor who manufactured evidence to indict the Duke lacrosse players in 2006—only underscore how relatively well prosecutors use their power most of the time.
There’s a myth that detailed rules give us more control over officials. That’s what motivates Congress to write statutes hundreds of pages long and inspires conservatives and liberals alike to demand legal instructions for every official choice. But misconduct is far easier in a rule-bound system. As exhibit A, just look at Jack Abramoff’s schemes and other recent scandals in Washington. A rule-bound culture allows bad people to hide, while good people lose their grasp on right and wrong. “By declaring war on elitism,” Fareed Zakaria observes in The Future of Freedom, “we have produced politics by a hidden elite, unaccountable, unresponsive and often unconcerned with any larger public interest.” Dictators know that the best way to subjugate a population is to wrap their power in the trappings of legal regularity. Hannah Arendt famously described the “banality of evil”—in supervising the murder of millions, Eichmann was just following orders.
Broad principles, by contrast, allow accountability based on results and, far from allowing officials unfettered discretion, serve as boundaries that hem in discretion. Justice Cardozo explained how it works in a judicial context. The judge “is not a knight-errant roaming at will. . . . He is to draw his inspiration from consecrated principles . . . informed by tradition, methodized by analogy.” Public goals and legal principles provide a far more effective basis for accountability than rote compliance.
Washington must scrape away decades of encrusted law to reconnect the chains of accountability essential in our democracy. Area by area, laws should be replaced by simpler statutes that set goals, allocate funding, and give responsibility to identifiable officials. The goals of No Child Left Behind, for example, could far better be advanced by a statute written in a few dozen pages, setting goals for national testing, and giving officials flexibility to see what kind of testing regime works. The privacy goals of HIPAA could satisfactorily be met by a few protocols for using electronic records and a general principle of confidentiality—“Patient records shall be kept confidential and used only for legitimate purposes”—without a requirement of paperwork and without fear of lawsuits. We want doctors and nurses to think about our health, not be preoccupied by what they can or cannot say out loud.
This will not come easily. The special interests won’t like it. Probably no one in Washington will like it. That’s why Washington won’t do it. The modern record of Washington on reforms like this is perfect: it has a batting average of zero. But that doesn’t mean it can’t be done.
TAKING RESPONSIBILITY OURSELVES
Washington can only be fixed from the outside. Outside pressure is how all institutions stay healthy. Without fierce competition large companies avoid tough choices needed for long-term survival. Municipal services tend to work reasonably well when the public sees the effects of their success or failure immediately—garbage collection comes to mind—and there are identifiable officials, the sanitation commissioner and the mayor, who catch holy hell if the trash starts piling up.
Partisan politics was supposed to provide competition for the greater good, but instead it’s become a race to the bottom. The few reform ideas that actually make it into law tend to fail because, as with No Child Left Behind, they pile layers of legal concrete onto educators already crushed by law. Other than Al Gore’s reinventing government program, I can think of almost no reforms that actually increased responsibility for officials.
Accountability in the traditional sense is not sufficient, however. Removing the immunity of civil servants from accountability about job performance, as occurred in Georgia, is certainly essential—otherwise Congress and the president can pretend they have no authority over how laws are implemented. But that won’t liberate officials from the bureaucratic concrete. Other suggestions along these lines would have only modest impact. Term limits in Congress would achieve some turnover from time to time but would do nothing to improve accountability when in office. Ballot initiatives can produce change in a particular state, as in California, but getting them passed requires a crusade, and the resulting laws are almost impossible to amend.
Starting over is probably not practical. I had a fantasy once about moving the national capital somewhere else. We’d get an entirely fresh group of public servants, because the current crew would be stuck in Washington, unable to sell their homes. Who would buy houses in a place with no jobs? Once the new government had settled in someplace else, say, St. Louis, we could give a concession to Disney to run Washington as a theme park on condition that it hire everyone there to do exactly what they were doing before—pretending to do something.
But the problem, in truth, is not mainly the people. There are lots of good people in Washington. But they work in a culture that has lost its capacity to take responsibility. The challenge is how to lead a turnaround of a government whose main flaw is that it can never turn around.
There’s only one way to pry Washington loose from the status quo. Because Washington will never do what’s right, people outside Washington have to assume this leadership. We must form a national coalition of citizen leaders to propose an overhaul of government. I’m not sure this has occurred on a national level, at least not since the days of Tom Paine and Samuel Adams. This may seem indirect, and let me admit that I come to this conclusion only because I see no other way. Once it gets over the hurdle of public credibility, however, a civic coalition led by people of influence can build pressure for changes of almost any scope.
The organizing model is a shadow government. Instead of partisan opposition, this shadow government would be run by citizens who, eschewing official position, develop legislative proposals in the areas most in need of change. Someone must do the hard work, for example, of sorting out the mess in health care. As one Democratic congressman told a group of health care experts, “Congress will never be able to bring all these pieces together. You have to work it out among yourselves and bring us the proposal.” Think of the base-closing commissions active in the 1990s—independent committees designated by Congress to recommend which military bases should be shut down and instituted precisely to avoid congressional gridlock.
What’s needed here is not to seize power, but to fill the vacuum of moral authority. Ancient Romans distinguished between people with power, such as an army general, and people with authority, who were respected for their wisdom and, often, their lack of self-interest. People with authority command not troops but the trust of others and, as a result, are often more influential in matters of gravity. “The favor of the sovereign may confer power,” Gibbon observed, but “the esteem of the people can alone bestow authority.”
The lever is public opinion. There’s no stronger force in society. “There is an amazing strength,” Tocqueville observed, “in the expression of the will of a whole people.” This was true even in the days of kings, and is especially true in a democratic state. Public opinion is amorphous yet unmistakable—reflected in the way people talk about issues, and in the frame of reference of the media. To be a force for change, public opinion must congeal into specific ideas; a general malaise is not enough. When it does, as Thomas Jefferson wrote to Lafayette, “the force of public opinion cannot be resisted.” The dictator of Romania Nicolae Ceauşescu was speaking to a huge assembly in 1989 when, in a pause, someone shouted, “Down with the dictator.” Another shouted, “Timisoara,” the site of recent brutal atrocities. The crowd picked up the chants, and Ceauşescu fled from the stage. After decades of tyranny, the rebellion took only days.
Mobilizing public opinion into a change agenda requires an orchestrated campaign. Sometimes this results in a movement, led by one or more people—notably, Martin Luther King, Jr., to end segregation. But sometimes there is a successful campaign with neither a broad movement nor identifiable leaders—say, the campaign to reduce smoking. Either way, once a campaign picks up steam, political leaders won’t resist. Politicians are lagging indicators, and will blow with the wind. What’s different about this campaign is that the target is not a specific evil, such as racism or smoking, but Washington itself.
Finding leaders who do not aspire to official power is an essential asset, because it enhances credibility. Al Gore is far more credible as an advocate against global warming because he’s not running for office. Former political leaders like Bill Bradley, Jeb Bush, Mario Cuomo, Newt Gingrich, Tom Kean, and Bob Kerrey, and municipal leaders such as Mike Bloomberg, Shirley Franklin, and Richard Daley, are perfect candidates to help lead this effort. Retired leaders of business and universities also have experience in forging coalitions and making tough choices.
A shadow government run by citizen leaders may be a new idea, but most communities have civic groups that, although lacking official power, have enormous sway over local affairs. A few examples: The Civic Committee in Chicago, comprised of leading citizens from all sectors, is deeply involved in almost all issues of public importance, from rebuilding airports to school reform. In the 1980s a few New Yorkers concerned about the deterioration of Central Park in New York came up with a plan to take it over—creating a group to design a complete overhaul, organize ongoing maintenance, and raise private funds to supplement the public budget—and Central Park is now a jewel. In Kentucky, a former governor, Bert T. Combs, teamed up with former New Dealer Ed Pritchard to lead a successful campaign to require equalization of school funding across the state. I’ve been involved in civic activities in New York my entire adult life and have witnessed dozens of public projects in which private citizens took the initiative and turned the tide—for example, saving Grand Central Terminal, under the leadership of Jacqueline Kennedy Onassis, writer Brendan Gill, and preservationist Kent Barwick. Another was changing the zoning code so the lights and billboards on Times Square wouldn’t disappear as office buildings started being developed there. At Common Good, we’ve been able to develop proposals for change supported by both teachers’ unions and boards of education, by patient groups and health care providers.
Everyone knows the system is broken. People long for genuine leadership. We should stop looking to Washington to fix itself and come up with solutions ourselves. This is not utopian—it’s a campaign, like any other, requiring money, staff, and conflict. As sure as the sun rises, a group with money and clout will attract political champions. Sooner or later, if the proposals are practical, they will become law. Like a dead limb, the rigid inertia of Washington will break when any credible force is applied to it.
Rewriting law, history shows, can energize an entire society. In ancient Rome, the emperor Justinian was famous for taking “the vast mass of juristic writings which served only to obscure the law” and rewriting them in a coherent code. In Justinian’s time, similar to ours, the “mania for juristic writing was a kind of cancer.” His code of uniform principles represented a clean break from the legal past and served as the legal foundation for Europe for centuries. Napoleon did the same thing with what is now called the Napoleonic Code, uniform general principles setting the legal boundaries for social interaction. Napoleon considered this new code his finest accomplishment. “The Revolution had turned the French into so many grains of sand,” Napoleon believed, and his new code, written by four distinguished jurists, would “throw upon the soil of France a few blocks of granite to give a direction to the public spirit.” The Napoleonic Code still acts as the foundation for legal systems in much of Western Europe (and in Louisiana). On a more modest level, the American Law Institute was formed in the 1920s for the explicit purpose of restating coherent principles out of the thousands of judicial decisions that had accumulated since the founding of the Republic. The ALI’s Restatements of the Law, periodically updated, have not been adopted by legislatures. But they are considered authoritative by all courts and therefore might as well be law. The Restatements remain the bedrock of common law jurisprudence.
Washington needs a dramatic legal overhaul on the same order as these historic reforms. I don’t want to understate the organizational challenge here. We don’t have (or want) Napoleon telling us what to do. Creating this new civic authority requires organizing a respected group of citizen leaders; developing specific proposals; working with the public to fine-tune the proposals; campaigning for public approval; and putting pressure on Washington to adopt the proposals. This once-in-a-century challenge will likely take a decade or longer.
Ambitious though this may be, it’s a lot less daunting than what our founding fathers faced: getting people to agree to revolt; fighting a war of independence; forming a union that didn’t work (the Articles of Confederation); coming together again in a constitutional convention to hammer out a new model of governance; selling this to the public (The Federalist Papers); and then doing the hard work of governing.
America doesn’t need a new Constitution, just a healthy spring cleaning and a practical approach to making public choices without crushing us under endless law. We don’t even need to change public goals (although the farm bill might finally disappear). The main change in Washington is to restore room so that officials can focus on our public goals, not mindless compliance, and we can identify whom to blame when things don’t work. The goal is for Washington to be an open field rather than an overgrown swamp, with the field bounded by public goals, legal principles, and mechanisms for personal accountability. In an open structure, Congress could start exercising oversight over how laws actually function. This would be the most radical change of all: Congress actually taking responsibility.