FINDING RESPONSIBILITY
IN THE AGE OF OBAMA
Calling for a “new era of responsibility” in his inaugural address, President Barack Obama reminded us that there are no limits to “what free men and women can achieve.” He could hardly have struck a more perfect chord for a struggling country. Let’s roll up our sleeves and make good things happen. This is the tradition of Thomas Paine and Thomas Edison, of Grange halls and Silicon Valley. America was built upon a belief in the power of each individual.
There is one essential condition for responsibility, however—people must feel free to do what they feel is right. That’s what taking responsibility means. That’s why the dawn of a new era of responsibility is not yet upon us. Responsibility has been trumped by too much law. People go through the day worried about the legal ramifications of daily encounters. Instead of taking responsibility, many people avoid it.
President Obama won’t unlock the secret to fixing health care or schools, much less lead America back to the promised land of common purpose, until he creates the conditions that support individual responsibility.
The success of social goals hinges on the power of individuals to make sense of daily choices. Skyrocketing costs in health care threaten to bankrupt the country, but neither the president nor Congress is overhauling the legal framework so that doctors can focus on doing what’s prudent, not worry about the legal consequences of remote possibilities. Doctors deliver care in a legal jungle, where every incentive is to do more—that’s how they get paid, that’s how they protect themselves from lawsuits. Improving productivity is hardly on the table. A doctor could communicate with fifty patients by e-mail in the time it takes to see one or two. But doctors don’t get paid for e-mails, and who will protect the doctor in the occasional case when seeing the patient in person would have been better?
Even the president is stymied by the legal thicket. One of Obama’s campaign promises was to use stimulus money to jump-start a green revolution. Two birds with one stone: We could stimulate the economy and clean up the environment at the same time. Transmission lines would carry energy from remote wind farms to our urban centers; new mass transit would provide commuting alternatives to cars spewing CO2 in traffic jams. This green vision quickly sank under legal quicksand. Experts say it will take ten years just to get started with a new transmission line. Mandated environmental reviews have evolved into thousands of pages of analysis—with no pebble left unturned—followed by lawsuits by any person or group that doesn’t like the project. Long after President Obama has left office, maybe in the year 2020, work will be able to begin. America has a crumbling, outdated physical infrastructure—and can’t fix it because America has a massive, outdated legal infrastructure.
With a short statute, Congress could set in motion a special commission to begin the work of rebuilding coherent legal boundaries. For example, in health care, a commission could review and recommend how to bring clarity to the bureaucratic jungle—such as creating standard reimbursement forms and simple regulatory goals that doctors could actually understand. Independent commissions and agencies can play a critical role in overcoming the special interest politics that have paralyzed Washington. Congress looks to “base-closing commissions” to recommend which states will lose their military bases. Building a coherent framework to contain costs in health care is basically impossible with hundreds of special interest negotiations with 535 members of Congress. That’s why America needs a “cost-containment” commission.
Congress lacks the idea that it has responsibility for making sense of how laws actually work. Its main allegiance is to the status quo. Congress stonewalled altogether the public clamor for a more reliable system of justice in health care—for the sole reason, as Howard Dean, the former chair of the Democratic National Committee, put it, that Congress “didn’t want to take on the trial lawyers.”
Congress refuses to take responsibility for existing law but is quick to blame others when anything goes wrong. The hypocrisy of Congress was on full display in hearings during the financial turmoil at the end of 2008. With American automakers on the verge of bankruptcy and needing a bailout in order to save countless jobs, members of Congress took turns wagging their fingers at CEOs for not making tough choices—not shedding “legacy costs,” not making products consumers wanted, not cutting bloated bureaucracies. Detroit had become unable to compete because it was unwilling to deal with its internal constituents.
Detroit is Google compared to Washington. Year after year, Congress makes laws but almost never repeals any of them. Legacy costs? Laws from the Depression will send tens of billions of dollars in unnecessary subsidies this year to farmers, organized labor, and other groups for the simple reason that Congress thought they were needed eighty years ago. Bloat in Washington is also notorious—dozens of layers of middle management exist because it’s nearly impossible to replace anyone under civil service laws.
Washington is broken, most Americans agree. In a 2009 survey, voters gave Congress one of its lowest approval ratings in history. If the failure of Congress were an isolated event, like the bankruptcy of a company, we could all move forward and find fulfillment in our own endeavors. Instead, the accumulation of law is crushing the American spirit.
The goal of any healthy society, President Obama stated eloquently in his inaugural address, is for citizens to have a sense of ownership of the common good—“a recognition on the part of every American that we have duties to ourselves, our nation, and the world; duties that we do not grudgingly accept, but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character. . . .”
Social currents are flowing powerfully in the opposite direction, however. “Civic virtue” is considered naïve rhetoric. Selfish behavior is the norm. The new cynicism is socially destructive, but it is inevitable with a legal structure that allows people to get away with irresponsible conduct. If the neighbors demand, and get, extra funding from the school for their child, why shouldn’t you? If that other teacher can get away with going through the motions, what’s the point of your staying up late to make better lesson plans? If your friend got a nice little settlement for a “sore neck” from a fender bender, why shouldn’t you make a similar claim? If trial lawyers can get away with sleazy ads and exorbitant claims, perhaps that’s just the way law needs to be practiced.
Calling for a new era of responsibility—Be Nicer!—will not arrest this downward spiral. Social responsibility requires more than good intentions. The public must have confidence that good values will be rewarded and bad values held accountable. Without accountability, talking about responsibility is just hot air.
Responsibility starts at the top, not the bottom. If we want Americans to embrace the common good as a core personal value, then those with public responsibility must have the authority to make judgments for the common good as well. Teachers and principals must be free to balance the needs of all the students. Judges must make clear that courtrooms are for serious disputes, not for personal greed. Congress must start making choices for the common good so that the public will no longer see it as a tool of special interests. Once Americans see responsibility in the public sphere, more will act responsibly in their own social interactions.
A responsible society also requires a basic shift in the vocabulary of public choice—away from looking at solutions as a matter of individual rights and toward empowering individuals to take responsibility. Americans have been conditioned to believe that the best safeguard of freedom is the accumulation of rights. But rights have degenerated into self-interested demands, undermining both individual freedom and our broader culture. Rights were intended to protect against bad values, but ended up corroding the ability to assert good values. This has given us a culture where, in the name of individual rights, citizens grab at common resources as if preying on a dead carcass.
Reformers often assert that America needs a “better balance between rights and responsibilities.” This is not a coherent formula. Rights are entitlements, and cannot be balanced. Rights always stifle responsibility. The teacher won’t maintain order because one student can threaten to drag her through a legal proceeding. The doctor won’t conserve resources because any patient who gets sicker can argue that more should have been done. Most choices in a democracy require balancing different interests, not enforcing rights. Balancing requires giving people in positions of responsibility—whether teachers, judges, or the president—the authority to draw these lines. Democracy is supposed to empower leaders, not emasculate them.
The American people seem ready for leadership again. One of the most popular reforms in Indiana in 2009 was an initiative led by Governor Mitch Daniels to purge law from daily classroom decisions, and restore the authority of teachers to maintain order. In a 2009 poll commissioned by Common Good and the Committee for Economic Development, 83 percent of American voters agreed that “as part of any health care reform plan, Congress needs to change the medical malpractice system so that cases are resolved quicker, and more reliably.” Even though a majority in the poll generally preferred juries to resolve lawsuits, 67 percent agreed that “cases should go to special health courts . . . [where] cases will be decided more quickly, and at less cost, using consistent standards.”
“Yes We Can” was the clarion call of self-determination that Obama used to energize the nation leading up to the election. It worked for the campaign. Now, after watching Washington’s performance during the health care debates, it seems like the punch line to a sarcastic joke. Nothing yet has been proposed by the Obama administration that would restore the conditions for individual responsibility.
President Obama’s call for self-determination is the right one. Most of America’s social problems are only symptoms of a collapse of individual power and responsibility. But trying to fix those symptoms by adding more laws and entitlements is a fool’s errand. The key is to restore the freedom of Americans to access their spontaneity, goodwill, and values.
Our first challenge remains as it was before President Obama was elected—to fix our broken democracy. A new era of responsibility is impossible until our leaders start taking responsibility for how law works, including repairing the legal boundaries that were washed away in a flood of law over the past forty years. None of this is likely to happen unless, like anything else in life, we come together to make it happen. “Yes We Can” . . . change Congress. Time will tell whether Americans are committed enough to force Washington to make sense of our legal system. But Americans must be liberated to make things work again. That’s the only way to revive the American spirit.