Common Good

Philip K. Howard: Action, not moderation, is the salve for American polarization

Polarizer in chief

Polarizer in chief

Polarized politics is a formula for public failure, a downward spiral of distrust and greater paralysis. Pulling out of this spiral is difficult because polarization is good business for politicians and pundits. Political coffers fill up with contributions from people who loathe the other side. President Trump has a unique genius for sowing division — playing to people’s fears and attacking the weaknesses of his opponents. Social media fans the flames of the latest outrage.

Some think the cure to polarization is more moderate politicians. By fixing electoral machinery that appears to favor extremists, such as gerrymandering and restricted primaries, reformers hope to return to the happy days when leaders from both parties could sit down and work things out. They long for Ronald Reagan and House Speaker Tip O’Neill.

Moderation is just happy talk, however, without a new vision of how to govern better. How would moderate leaders fix schools, or reduce health care costs, or issue permits within a year’s time instead of a decade? None of the candidates in the 2020 presidential election offers a cure to the alienation that Americans feel towards Washington.

Washington, meanwhile, plows forward, a giant bureaucratic state crammed with red tape and obsolete programs. Democracy has degenerated into a kind of legal perpetual-motion machine, taking upwards of a decade to approve vital infrastructure projects. Bureaucracy is everywhere. According to the World Bank, the U.S. ranks 53rd in ease of starting a business. Practical choices throughout society are stymied by overbearing law — whether maintaining order in the classroom, being candid with an employee, or letting children walk to school alone. Is your paperwork in order?

Reformers have confused cause and effect: Paralyzed government, not polarization, is the original sin of modern government. Bureaucratic densification since the 1970s has made government beyond human control. Government’s inability to respond to public needs is the chicken that laid the egg of polarized politics. The inability of Americans to roll up their sleeves and fix things leads inexorably to extremism. Political leaders who can’t get things done compete instead by pointing fingers and screaming louder.

Populism thrives on fear and anxiety. A collective sense of powerlessness spawns the instinct to vilify “the other.” Government is toothless to deal with dislocations of global commerce, new technology and waves of immigrants. Self-reliance is stymied by faceless bureaucracy. Unresponsive government prompts anxious citizens to embrace populist solutions.

In 1939, the organizational expert Peter Drucker wrote that fascism had taken root because the establishment had offered “no new order” to counteract the dislocation of the Great Depression. But fascism was doomed to fail, Drucker argued, because its popularity was based on attacking scapegoats, not a positive governing vision. The solution to a destabilized society in which people feel powerless, Drucker argued, must be “built upon a concept of the nature of man and of his function and place in society.” People must be able to help themselves and their society.

The way out of America’s downward spiral is not moderation but a radical spring-cleaning of government to re-empower Americans at every level of responsibility. Liberating people to act, not top-down solutions, is the cure to paralysis.

The only cure for alienation is ownership. This requires not wholesale de-regulation, but rebooting government with simpler, open frameworks that set goals and governing principles. Simpler codes will allow Americans to understand what is expected of them and afford them flexibility to get there in their own ways. Only then will officials and citizens have the freedom to make sense of daily choices.

Action, not moderation, is the salve for polarization. Conventional wisdom is that letting individuals use their judgment will exacerbate social conflict. Evidence suggests the opposite: A study in Britain found that professionals with opposed ideological views generally arrive at similar solutions when confronting concrete problems. Studies of American judges and of German bank regulators also found remarkable consistency.

Local communities must be able to run schools in their own ways. Health care providers must be accountable for overall quality, not to compliance police playing “gotcha.” Officials must be empowered to set up and give permits in “one-stop shops.” Governors must have freedom to try new ways to manage unemployment relief and other public services. Citizens must have someone to call, and to blame, when things aren’t working.

Reviving human responsibility does not solve societal challenges such as income stagnation, climate change, or immigration. But it reinvigorates a culture of practical action that is the antidote to corrosive polarization. Empowering people to be practical in their daily challenges will likely rub off in their political views. Polarization will fade away when Americans, waking up each morning, feel that both they and their officials in Washington can make a difference again.

Philip K. Howard is chair of Common Good and author of the new book Try Common Sense (W.W. Norton, 2019). Follow him on Twitter @PhilipKHoward. He’s also a friend and occasional colleague of New England Diary editor Robert Whitcomb. This piece first ran in The Hill.


Baker tries to streamline transit improvements

— Photo by LuK3

— Photo by LuK3

From Robert Whitcomb’s “Digital Diary,’’ in

‘It takes much longer in the U.S. than in other developed nations to build and repair public infrastructure, as my old friend Philip K. Howard, who chairs Common Good, has researched, and written about so well, in such books as Try Common Sense.

The Massachusetts Bay Transportation Authority is in need of massive repairs and major subway and commuter train service expansion. So it was heartening to read that the public-private partnership aspect of Gov. Charlie Baker’s 10-year, $18 billion transportation plan includes provisions to streamline the procurement process.

The Boston Globe had an example of how stuff gets held up and things can be moved along at a faster clip.

“Most notably, the bill contains language aimed at avoiding what went down in Quincy last year: A development at the MBTA’s North Quincy Station ground to a halt after Attorney General Maura Healey ruled the T broke the law by not bidding out work for a parking garage that would be built there. A private developer was going to build the garage, but it would have ultimately been owned by the T.

“Baker’s bill would avoid another such situation by relaxing procurement rules to allow developers to move forward on a wide array of public transportation infrastructure — from staircases to stations — that would be part of their projects but deeded to the state or the MBTA. ‘’

One of the more interesting Baker administration proposals is to set up a new, $50 million program for a $2,000-per-employee tax credit for employers who let workers telecommute, thus reducing the pressure on Greater Boston’s often clogged roads during weekday rush hours. Of course, few managers would be affected.

To read more about the Baker plan, which of course would very much affect neighboring states, too, hit these links:

Philip K. Howard: Answers to Washington gridlock are hiding in plain site


The cornucopia of policy ideas presented by Democratic presidential hopefuls is remarkable mainly in what’s been omitted: the need to overhaul Washington so that it can deliver public services effectively. A huge opportunity awaits any political leader with the nerve to seize it.

A recent survey by political scientist Paul Light found that about 60% of Americans support “very major reform” of Washington. That’s what voters had hoped for when Barack Obama promised “change we can believe in.” When that didn’t work out, 8 million Obama voters turned around and voted for a rich braggadocio who promised to “drain the swamp.”

But Trump’s bluster hasn’t translated into any coherent plan to fix Washington. His executive orders mainly undo Obama’s executive orders, such as removing restrictions on coal-burning power plants. That’s probably not the swamp-draining that most voters hoped for.

Instead of tapping into the broad centrist demand for overhaul, Democrats are rushing to the left. They’re competing with promises of more public freebies (Medicare for all, college debt forgiveness, universal basic income) and with angry sermons about victimization. But voters know that the public fisc is already gushing red ink (the annual deficit is about $10,000 per family), and identity politics is toxic to centrists who believe in self-reliance.

It’s almost as if Trump himself had scripted Democratic positions. He has a feral genius for ridiculing weakness. Trump may not have a vision for dealing with most of America’s challenges, but he likely won’t need one. He knows that Americans hate Washington, and he’s a virtuoso at playing that tune.

Instead of promising the moon, why don’t Democrats promise to clean house? Public opinion is aligned for a historic transformation of Washington. A vision for a simpler, more practical government could appeal not only to centrists but also to Republican voters who know in their hearts that real leadership is impossible without a positive governing vision and moral authority.

Almost any sensible reconfiguration of Washington would dramatically advance the stated goals of both parties:

• Rebooting legacy bureaucracies could marshal the needed resources for climate change and wage stagnation. Runaway bureaucracy is staggeringly expensive. About 30% of the healthcare dollar is spent on administration, or about $1 million per physician. Schools in more than 20 states now have more non-instructional personnel than teachers.

• Republicans want to cut red tape and get government off our backs. A simpler, goals-oriented regulatory framework would eliminate 1,000-page rulebooks for schools, hospitals and employers. Instead of Big Brother breathing down our necks, Washington would become a distant trustee, protecting against miscreants who cross the line, not micromanaging daily life in America.

The sticking point to overhauling Washington is not American voters, but Washington itself. Washington is organized to preserve the status quo. Political leaders are entrapped by their alliances to interest groups. Gosh, we can’t get rid of 1930s programs such as farm subsidies ($16 billion), or inflated wages on infrastructure (about 20% higher than market), or lower taxes for investment professionals ($14 billion), because those interest groups help Washington pols get reelected.

Fig leaves can’t disguise the self-interest of these legacy programs. When Democrats talk about “due process” for teachers and civil servants, voters know this means zero accountability. When they wave the sword of individual rights, voters start holding on to their wallets. Indeed, much of Trump’s voter appeal is his refusal to kowtow to the politics of victimization and correctness.

Republicans aren’t much better. When they talk about stimulating the economy with lower taxes, they usually mean lining the pockets of their supporters by increasing the deficit, not reducing the public waste they deplore. When Republicans talk about deregulation, they don’t usually mean cutting red tape, but cutting regulatory oversight altogether—usually to benefit an industry, not the public. Their anti-regulatory overreach helps explain why the last four Republican administrations have been so ineffective at reining in big government—and, in fact, presided over bureaucratic growth.

Governing shouldn’t be this hard. It doesn’t take a genius to remove mindless red tape from schools and hospitals. No Ph.D. is required to phase out obsolete subsidies and reset priorities. Nor does it take a mind reader to discern what most voters want. Americans want government to be practical. And they want to be practical in their own lives and communities.

Being practical requires that officials and citizens are free to make choices. Then other people need to be free to hold them accountable. None of these choices are available today, because law has supplanted human responsibility. Practicality is illegal in Washington bureaucracy. That’s why, for example, it takes upwards of a decade to get a permit for vital infrastructure projects.

Nothing can get fixed in Washington until responsible humans can make new choices. That’s why the only path to a functioning democracy is to reboot Washington. Officials and citizens alike must be liberated to take responsibility. Instead of being shackled to 1,000-page rulebooks, we must be free to make choices that we think are sensible.

Rebooting Washington is a simple idea, as obvious to most voters as it is radical to most political insiders. The virtues are not hard to explain: It would both reset priorities and revive human agency as the activating mechanism for public choices. Public debate would focus on success and failure, not abstract theories. Electing new leaders would make a difference.

American voters know the system is broken. But it won’t be fixed by making voters choose between a liberal or conservative fork in the road. What Washington needs most is practicality, not ideology. The leader who articulates a principled vision for practical government could seize the day and lead a historic overhaul to restore common sense and dignity to all levels of public responsibility.

Philip K. Howard, chairman of Common Good, is a New York-based lawyer, civic leader, legal and regulatory reformer, author and photographer. His latest book is Try Common Sense: Replacing the Failed Ideologies of Right and Left. This piece first ran in Forbes magazine. Hit this link. Or this link.


Philip K. Howard: How to make a deal to address America's infrastructure crisis

A photo by Philip K. Howard in his "Peripheral Visions'' series, much of it about transportation infrastructure, some of it crumbling. To see more,   please hit this link  .    

A photo by Philip K. Howard in his "Peripheral Visions'' series, much of it about transportation infrastructure, some of it crumbling. To see more, please hit this link.


President Trump this week reiterated his commitment to “rebuild our crumbling infrastructure.” He called upon Congress to enact a law that “generates at least $1.5 trillion” and also to “streamline the permitting and approval process — getting it down to no more than two years, and perhaps even one.”

This would be an enormous boon to society, improving not only America’s competitiveness, but also creating a greener environmental footprint — while adding more than a million new jobs.

But environmental groups are lining up in opposition even before they’ve seen the details. Streamlining red tape, they argue, requires gutting environmental regulations. Are they really in favor of bloated processes that can take a decade or longer and produce impenetrable 5,000-page environmental review statements?

The facts are not on their side. A 2015 report by my organization, Common Good, found the following:

Other greener countries such as Germany approve large projects in less than two years, including environmental review.

 A typical six-year delay in large projects more than doubles the effective cost of the projects.

 Lengthy environmental reviews often harm the environment by prolonging polluting bottlenecks.

Modernizing America’s infrastructure is a necessity, not an ideology. Rickety transmission lines lose 6 percent of their electricity, the equivalent of 200 coal-burning power plants. About 2,000 “high-hazard” dams are in deficient condition. Century-old water-mains leak over 2 trillion gallons of fresh water a year. Over 3 billion gallons of gasoline are consumed by vehicles idling in traffic jams. Half of fatal car accidents are caused in part by poor road conditions.

Fixing this doesn’t require changing, much less gutting, environmental protections. Common Good has presented Congress with a three-page legislative proposal that creates clear lines of authority to make decisions on a timely basis: An environmental official would be authorized to focus the review on material issues, not thousands of pages of trivial detail; the White House could resolve disagreements among bickering agencies; federal law would preempt delays by state and local governments on interstate projects; and lawsuits would be expedited and limited to material environmental harms, not foot faults.

No one intended environmental review or permitting to take a decade. Current regulations say that analyses in complex projects should not exceed 300 pages. But the review for raising the roadway of the Bayonne Bridge, a project with virtually no environmental impact (it used the existing bridge foundations), was 20,000 pages including exhibits. This is bureaucratic insanity.

What the current process does is give environmental groups a veto. Just by threatening to sue, they can drag processes on for years. But where in the Constitution does it empower naysayers to call the shots? Environmental review should not be used to prevent elected officials from making decisions.

Funding is also obviously needed. The political deal is obvious: Democrats should agree to streamline permitting as long as Republicans provide adequate funding. Most roads and other such projects lack a revenue stream and require public funds. It’s a good investment, returning about $1.50 for every dollar spent, according to Moody’s. It’ll be an even better investment when effective costs are cut in half by streamlining permitting.

Trump’s initiative is a moral as well as a practical imperative. We are living off the infrastructure built by our grandparents and their grandparents. What shape will it be in when we bequeath it to our grandchildren?

New York has choke points that can’t tolerate any further delay. The two rail tunnels coming into Penn Station from New Jersey are over 100 years old, and were badly damaged by Superstorm Sandy. When they shut down for repairs the result is “carmageddon” — 25-mile gridlock.

The approach bridge to those tunnels is made of iron and wood, and occasionally catches fire or gets stuck when pivoting open for barge traffic — causing trains to wait for hours. The “Gateway project” for two new tunnels is essential to avoiding economic and environmental chaos, and almost ready for construction. It needs permits and money. Congress has to provide it.

On fixing America’s transportation woes, it’s time to link arms, not use any pretext to oppose this plan.

Philip K. Howard is chairman of the nonpartisan Common Good ( reform organization and a New York-based civic leader,  lawyer, author (including the best-selling The Death of Common Sense), and photographer. He's also an old friend, classmate and sometime colleague of New England Diary editor Robert Whitcomb.  This piece first ran in The New York Post.

Philip K. Howard: Repairing Democracy in an age of distrust

Philip K. Howard: Repairing Democracy in an age of distrust
 Democracy can’t earn the allegiance of its citizens with centralized dictates. We need to have our say, and be free to do things in our own way. This crisis of democratic identity can’t be resolved merely with new policies at the top. Top-down government is itself the problem. Americans now have an historic opportunity to reimagine government. The key is to abandon the centralized operating philosophy which, in thousand-page rulebooks, purports to tell everybody how to do everything. Government must still protect against abuse—otherwise freedom will be destroyed by bad actors just as surely as it is by suffocating bureaucracy.

Philip K. Howard: Start rebuilding America's crumbling infrastructure now

This from our friend Philip K. Howard, who runs Common Good, a reform group:

American voters have rejected the ways of Washington. The challenge is to channel that populist force for positive change.  
Here are two initiatives that could enjoy broad support:
1. Start rebuilding infrastructure now. Trump is committed to this, as are Democratic leaders, but he will be stymied unless Congress passes a simple bill creating clear lines of authority to make needed decisions.  Otherwise projects will languish in bureaucracy for years as experts write foot-thick reports. (See Common Good’s report “Two Years, Not Ten Years”). The upside here is YUGE: Cut costs in half, build a greener footprint, and create 1.5 million new jobs.
2. Begin simplifying government. Red tape is choking America, including government itself. Trump should announce a new approach to regulating: Simplify law into goals and principles, so that it is understandable and people have room to use their common sense. He should also appoint an outside commission to recommend radically simplified structures. Governing sensibly is impossible in today’s red tape jungle. 

If you agree, pass this note along. We have a vision to reconnect Washington to the rest of America.

Copyright © 2016, All rights reserved.

 A campaign brought to you by


Robert Whitcomb: Forever and a day to build something


Excerpted from Aug. 18 Digital Diary column in GoLocalProv.

Please, city, don’t hold this up too! MSI Holdings LLC wants a few waivers to build an 11-story retail/residential building on what is now a parking lot on Canal Street in downtown Providence, most notably a waiver that would let the owners exceed the official height limit for the neighborhood in the city’s zoning rules.

The Providence Business News also reports that “the applicant has requested waivers from the recess requirement, and ground floor and upper level transparency requirements for the portion of the building that faces a narrow alley, called Throop Street.’’ Few people would see that side.

The applicant  ought to get the waivers promptly. Having lots of parking lots downtown in place of buildings is deadly. They shout urban decay. Density, on the other hand, speaks of vitality and prosperity. Jam in those buildings!

Time and time again, excessively rigid zoning rules have prevented what would be perfectly respectable structures from going up in Providence, or has grossly delayed them. The parking lot that this building would cover is an eyesore. Let’s get as much bustle as we canfrom people and businesses in downtown Providence, an eminently walkable place.

Which gets me to how long it takes to get anything done in Rhode Island.

The Rhode Island Department of Transportation expects to  finally award a bid in October to build the long-delayed (for 10 years!) pedestrian bridge over the Providence  River, with completion expected by November 2018. It looks like this thing will cost about $20 million.

The bridge will link College Hill and Fox Point with downtown, creating various commercial and other synergies. It should become a kind of tourist site and popular meeting place. Let’s hope that a brilliant architect designs it. Friedrich St. Florian?

Of course, because of the necessary oversight of publicly funded projects, the zoning-ordinance labyrinth, constituency politics and the vagaries of the economy, public projects usually take much longer than private ones. Still, 10 years is far too long! Businesses and individuals take negative notice of places where minor but needed repairs, such as filling potholes, let alone big projects,  seem to take eons to happen. Such delays are particularly frustrating in a place as small as Rhode Island, where you might think it would be easier to get things done.

It’s a problem around America.

Common Good, run by my  friend Philip K. Howard, has a very useful and proscriptive report out called Two Years, Not Ten Years: Redesigning Infrastructure Approvals  that among otherthings discusses the huge costs of delaying infrastructure permits.  To read the report, please hit this link. 

Robert Whitcomb is the overseer of New England Diary.

Trying to put us back in charge


My old friend Philip K. Howard sent this along. It’s well worth reading, and joining Common Good.

-- Robert Whitcomb

Common Good has  launched a national bipartisan campaign – called “Who’s in Charge Around Here?” – to build support for basic overhaul of the federal government.  

The campaign, which has been endorsed by leaders from both political parties, will show how to remake government into simple frameworks that  let people to take charge again. Rules should lay out goals and general principles – like the 15-page Constitution – and not suffocate responsibility with thousand-page instruction manuals.

The campaign is co-chaired by former U.S. Sen. Bill Bradley (D.-N.J.) and Common Good Chair Philip K. Howard. Among those who have already endorsed the campaign are former Governors Mitch Daniels (R.-Ind.) and Tom Kean (R-N.J.), and former U.S. Sen. Alan Simpson (R.-Wyo.) who co-chaired the Simpson-Bowles Commission on government reform.

Americans are frustrated. They can’t take responsibility. Bureaucracy is everywhere. The president can’t fix decrepit roads and bridges. A teacher can’t deal with a student disrupting everyone else’s learning. Physicians and nurses take care of paperwork instead of patients. A manager can’t give an honest job reference. Parents get in trouble for letting their children explore the neighborhood. Washington does almost everything badly. Take any frustration, and ask: Who’s in charge around here? That’s a problem.

Modern government is a giant hairball of regulations, forms and procedures that prevent anyone from taking charge and acting sensibly. No one designed this legal tangle. It just grew, and grew, and grew, until common sense became illegal. That’s the main reason that government is paralyzed. That’s why it takes a team of lawyers to get a simple permit. Every year, the red tape gets denser.

Our campaign will use video and social media to drive a national conversation to return to Americans the freedom to let ingenuity and innovation thrive in their daily lives. The campaign’s first three-minute video, narrated by Stockard Channing, uses white-board animations to explain how government should work. Titled “Put Humans in Charge,” the video is available here. 

Americans know that common sense has taken a backseat to stupidity, but political debate has not drawn a clear link to suffocating legal structures. The campaign features “The Stupid List” showing how obsolete and over-prescriptive bureaucracy undermines infrastructure and the environment, schools, health care, jobs and the economy.  The Stupid List is available here.  

“Whether you are Democrat or Republican, you are a citizen first,” said Co-Chair Bill Bradley. “A functioning government serves a citizen’s interests. We need sensible reform that encompasses compassion and responsibility. Common Good demonstrates such an outcome is not impossible.”

 “Voter frustration with broken government will only grow until Washington reboots to reset priorities and cut needless bureaucracy,” said Co-Chair Philip K. Howard. “It’s time to mobilize for a dramatic overhaul – replacing mindless compliance with common sense. That’s the only way to liberate American initiative and make government responsive to modern needs. America’s global competitiveness depends upon it.”

The campaign’s Website is The campaign is active on Facebook, Twitter and Instagram. For further information, contact Emma McKinstry at

Common Good ( is a nonpartisan reform coalition whose members believe that individual responsibility, not rote bureaucracy, must be the organizing principle of government.

The founder and chairman of Common Good is Philip K. Howard, a lawyer and author of The Rule of Nobody (W. W. Norton) and The Death of Common Sense (Random House), among other books.


Philip K. Howard: Congress needs to clean out the stables of long-outdated laws

Government is broken. So what do we do about it? Angry voters are placing their hopes in outsider presidential candidates who promise to “make America great again” or lead a “political revolution.”

But new blood in the White House, by itself, is unlikely to fix things. Every president since Jimmy Carter has promised to rein in bureaucratic excess and bring government under control, to no effect: The federal government just steamed ahead. Red tape got thicker, the special-interest spigot stayed open, and new laws got piled onto old ones.

What’s broken is American law—a man-made mountain of outdated statutes and regulations. Bad laws trap daily decisions in legal concrete and are largely responsible for the U.S. government’s clunky ineptitude.

The villain here is Congress—a lazy institution that postures instead of performing its constitutional job to make sure that our laws actually work. All laws have unintended negative consequences, but Congress accepts old programs as if they were immortal. The buildup of federal law since World War II has been massive—about 15-fold. The failure of Congress to adapt old laws to new realities predictably causes public programs to fail in significant ways.

The excessive cost of American healthcare, for example, is baked into legal mandates that encourage unnecessary care and divert 30 percent of a healthcare dollar to administration. The 1965 law creating Medicare and Medicaid, which mandates fee-for-service reimbursement, has 140,000 reimbursement categories today and requires massive staffing to manage payment for each medical intervention, including giving an aspirin.

In education, compliance requirements keep piling up, diverting school resources to filling out forms and away from teaching students. Almost half the states now have more administrators and support personnel than teachers. One congressional mandate from 1975, to provide special-education services, has mutated into a bureaucratic monster that sops up more than 25 percent of the total K-12 budget, with little left over for early education or gifted programs.

Why is it so difficult for the U.S. to rebuild its decrepit infrastructure? Because getting permits for a project of any size requires hacking through a jungle of a dozen or more agencies with conflicting legal requirements. Environmental review should take a year, not a decade.

Most laws with budgetary impact eventually become obsolete, but Congress hardly ever reconsiders them. New Deal Farm subsidies had outlived their usefulness by 1940 but are still in place, costing taxpayers about $15 billion a year. For any construction project with federal funding, the 1931 Davis-Bacon law sets wages, as matter of law, for every category of worker.

Bringing U.S. law up-to-date would transform our society. Shedding unnecessary subsidies and ineffective regulations would enhance America’s competitiveness. Eliminating unnecessary paperwork and compliance activity would unleash individual initiative for making our schools, hospitals and businesses work better. Getting infrastructure projects going would add more than a million new jobs.

But Congress accepts these old laws as a state of nature. Once Democrats pass a new social program, they take offense at any suggestion to look back, conflating its virtuous purpose with the way it actually works. Republicans don’t talk much about fixing old laws either, except for symbolic votes to repeal  the Affordable Care Act. Mainly they just try to block new laws and regulations. Statutory overhauls occur so rarely as to be front-page news.

No one alive is making critical choices about managing the public sector. American democracy is largely directed by dead people—past members of Congress and former regulators who wrote all the laws and rules that dictate choices today, whether or not they still make sense.

Why is Congress so incapable of fixing old laws? Blame the Founding Fathers. To deter legislative overreach, the Constitution makes it hard to enact new laws, but it doesn’t provide a convenient way to fix existing ones. The same onerous process for passing a new law is required to amend or repeal old laws, with one additional hurdle: Existing programs are defended by armies of special interests.

Today it is too much of a political struggle, with too little likelihood of success, for members of Congress to revisit any major policy choice of the past. That’s why Congress can’t get rid of New Deal agricultural subsidies, 75 years after the crisis ended.

This isn’t the first time in history that law has gotten out of hand. Legal complexity tends to breed greater complexity, with paralytic effects. That is what happened with ancient Roman law, with European civil codes of the 18th Century, with inconsistent contract laws in American states in the first half of the 20th Century, and now with U.S. regulatory law.

The problem has always been solved, even in ancient times, by appointing a small group to propose simplified codes. Especially with our dysfunctional Congress, special commissions have the enormous political advantage of proposing complete new codes—with shared pain and common benefits—while providing legislators the plausible deniability of not themselves getting rid of some special-interest freebie.

History shows that these recodifications can have a transformative effect on society. That is what happened under the simplifying reforms of the Justinian code in Byzantium and the Napoleonic code after the French Revolution. In the U.S., the establishment of the Uniform Commercial Code in the 1950s was an important pillar of the postwar economic boom.

But Congress also needs new structures and new incentives to fix old law.

The best prod would be an amendment to the Constitution imposing a sunset—say, every 10 to 15 years—on all laws and regulations that have a budgetary impact. To prevent Congress from simply extending the law by blanket reauthorization, the amendment should also prohibit reauthorization until there has been a public review and recommendation by an independent commission of citizens.

Programs that are widely considered politically untouchable, such as Medicare and Social Security, are often the ones most in need of modernization—to adjust the age of eligibility for Social Security to account for longer life expectancy, for example, or to migrate public healthcare away from inefficient fee-for service reimbursement. The political sensitivity of these programs is why a mandatory sunset is essential; it would prevent Congress from continuing to kick the can down the road.

The internal rules of Congress must also be overhauled. Streamlined deliberation should be encouraged by making committee structures more coherent, and rules should be changed to let committees become mini-legislatures, with fewer procedural roadblocks, so that legislators can focus on keeping existing programs up-to-date.

Fixing broken government is already a central theme of this presidential campaign. It is what voters want and what our nation needs. A president who ran on a platform of clearing out obsolete law would have a mandate hard for Congress to ignore.

Philip K. Howard, a New York-based lawyer, civic leader and writer, is the founder of the advocacy group Common Good and the author, most recently, of The Rule of Nobody.



Philip K. Howard: How to bring parties together to fix infrastructure mess

Fixing America’s decrepit infrastructure shouldn’t be controversial—it enhances competitiveness, creates jobs, and helps the environment. And of course, it protects the public. Repairing unsafe conditions is a critical priority: More than half of fatal vehicle accidents in the United States are due in part to poor road conditions.

After years of dithering, Washington is finally showing a little life for the task. Congress recently passed a $305 billion highway bill to fund basic maintenance for five years. But the highway bill is pretty anemic—it barely covers road-repair costs and does nothing to modernize other infrastructure. The total investment needed through the end of this decade is actually $1.7 trillion, according to the American Society of Civil Engineers. Further, the highway bill does nothing to remove the bureaucratic jungle that makes these projects so slow and costly.

But these two failures—meager funding and endless process—may actually point the way to a potential grand bargain that could transform the U.S. economy: In exchange for Democrats getting rid of nearly endless red tape, Republicans would agree to raise taxes to modernize America’s infrastructure.

Stalled funding. The refusal to modernize infrastructure is motivated by politics, not rational economics. By improving transportation and power efficiencies, new infrastructure will lower costs and enhance U.S. competitiveness—returning $1.44 for every dollar invested, according to Moody’s. That’s one reason why business leaders, led by the U.S. Chamber of Commerce and the National Association of Manufacturers—normally on the same page as congressional Republicans—have been pleading for robust public funding. As an added benefit, 2 million new jobs would be created by an infrastructure-modernization initiative, jump-starting the economy. That’s why labor leaders and economists have joined with the business community to advocate for it.

But these benefits largely accrue to society at large—not to the public entities funding the infrastructure. Because tolls and other user charges, where applied, rarely cover all the capital costs, the federal government often must subsidize public works if the United States wants modern interstate transportation, water, and power systems. As a matter of party ideology, however, Republicans have steadfastly refused to raise the gas tax and other taxes needed to fund infrastructure. This line in the sand was drawn in the 1990s because of the Republican conviction, widely shared by the public, that government is wasteful.

So when the highway trust fund expired this year, Congress found itself in an ideological struggle over how to fix potholes. Unfortunately, Washington’s answer is an inadequate funding plan that is also basically dishonest, resorting to gimmicks like selling oil from the nation’s strategic petroleum reserve at more than $90 per barrel (when the market price is closer to $40).

Red-tape waste. The Republican frustration about government waste is illustrated by the inefficiencies of infrastructure procurement and process. The arduous procedures by which public infrastructure gets approved and built shows that total costs could be cut in half by dramatically simplifying the environmental review and permitting processes—which can often consume a decade or longer. The water-desalination plant in San Diego, for example, which is vital for water-parched California, began its permitting in 2003. It finally opened in December 2015, after 12 years and four legal challenges.

Even projects with little or no environmental impact can take years. The plan to raise the Bayonne Bridge roadway, which spans a strait that connects New Jersey to Staten Island—in order to allow a new generation of post-Panamax ships into Newark Harbor—had virtually no environmental impacts because it used the same foundations and right of way as the existing bridge. Yet the project still required five years and a 20,000-page environmental assessment. Among the requirements was a study of historic buildings within a two-mile radius of the Bayonne—even though the bridge touched no buildings. Once approved, the project was then challenged in the courts based on—you guessed it—inadequate environmental review.

All of this process is expensive. The nonpartisan group Common Good (which I chair) recently published a report on bureaucratic delays, Two Years, Not Ten Years, which found that decade-long review and permitting procedures more than double the effective cost of new infrastructure projects. Delay increases hard costs by at least 5 percent per year. Delay prolongs bottlenecks and inefficiencies, which totals 10 to 15 percent of project costs per year (depending on the infrastructure category). A six-year delay, typical in large projects, increases total costs by more than 100 percent.

Careful process, the theory goes, makes projects better. But the U.S. approval process mainly produces paralysis not prudence. America’s global competitors don’t weigh themselves down with these unnecessary costs. Take Germany: It is a far greener country than the United States, yet it does environmental review in a year not a decade. Germany is able to accomplish both review and permitting in less than two years by creating clear lines of authority: A designated official decides when there has been enough review and resolves disputes among different agencies and concerned groups. The statute of limitations on lawsuits is only one month, compared with two years in the United States—and that two years is only because it was shortened under the new highway bill. Following Germany’s lead, Canada recently changed its permitting process to complete allreviews and other infrastructure decisions within two years, with clear grants of authority to officials to meet deadlines.

Like most laws, America’s infrastructure process has its supporters. Any determined opponent of a project can “game” the procedures to kill or delay projects it doesn’t like. And, just as most Republicans are adamant about not raising taxes, many Democrats are adamant about not relinquishing the effective veto power environmentalists currently wield. After all, who knows when a new Robert Moses might appear to flatten urban neighborhoods?

Spending years arguing about if the project is worthwhile rarely improves the decision.

The tragic flaw in this position, however, is that lengthy environmental review is dramatically harmful to the environment. Prolonging traffic and rail bottlenecks, the Common Good report found, means that billions of tons of carbon are unnecessarily released as officials, environmentalists, and neighbors bicker over project details. America’s archaic power grid—not replaced in part because of permitting uncertainties—wastes electricity equivalent to the output of 200 coal-burning power plants. At this point, the decrepit state of America’s infrastructure means that almost any modernization, on balance, will be good for the environment. Water pipes from 100 years ago leak an estimated 2.1 trillion gallons of water per year. Faulty wastewater systems release 850 billion gallons of waste into surface waters every year. Overall, America’s infrastructure receives a D+ rating from the American Society of Civil Engineers. For every project that is environmentally controversial, such as the Keystone pipeline, there are scores of projects that would easily provide a net benefit to the environment.

In some vital projects, adhering to rigid legal processes could even lead to catastrophe. For example, the proposed new rail tunnel under the Hudson River must be completed before the adjoining tunnel is shut down to repair damage caused by Hurricane Sandy. Any delay in approvals would cut rail capacity to Manhattan from New Jersey in half, with unthinkably bad consequences on traffic, carbon emissions, and the economy.

Environmental review is important, but the tough choices required can usually be understood and aired in a matter of months not years. The trade-offs for the most part are well known: A desalination plant will produce one gallon of briny byproduct for every gallon of clean water; the new rail tunnel under the Hudson River will require dislocating homes and businesses at either end; a new power line will emit electromagnetic energy and mar scenic vistas. But California’s fresh water must come from somewhere, New York needs to eliminate rail bottlenecks, and new power lines will carry clean electricity to cities from distant wind farms. In each case, the relevant questions are whether the new project is worth the costs and, sometimes, whether there’s a practical way to mitigate the effects. Spending years arguing about if the project is worthwhile rarely improves the decision—it only makes projects more expensive while prolonging pollution.

A new bargain. There’s a way to break the logjam caused by a lack of needed funding and an overabundance of process. Conservatives concerned about wasteful government should agree to raise taxes to fund infrastructure if liberals agree to abandon the bureaucratic tangle that causes the waste. This deal will cut critical infrastructure costs in half, enhance America’s environmental footprint, and boost the economy.

Adequate funding will get America moving with safe and efficient infrastructure. And abandoning years of process need not undermine environmental goals or public transparency. The key, as in Germany and Canada, is to allocate authority to make needed decisions within a set time frame. Public input is vital, but it can be accomplished in months. Plus, input is more effective at the beginning of the process, as adjustments can be made before any plan is set in the legal concrete of multi-thousand-page environmental-review statements.

Politically, of course, getting Republicans and Democrats to strike a bargain—more funding for less bureaucracy—won’t be easy. Special interests on both sides have their claws deep into the status quo. It is notoriously difficult to raise taxes, and curbing review timelines can sound like cutting corners. But America can’t move forward on infrastructure built two generations ago. Eliminating traffic jams, electricity outages, airplane delays, and unnecessary tragic accidents will be more than worth the small increase in taxes and a shorter review period.

Congress knows there’s a problem­. The new 1,300-page highway bill tiptoes toward streamlining decisions. Unfortunately, these good intentions may actually make matters worse. The bill creates a new 16-agency committee to review projects and defines elaborate procedures on how to set a permitting timetable. But the timetable can be waived, and the new procedures assiduously avoid the one indispensable element for enforcing deadlines: a final decision maker. Indeed, the reluctance to grant anyone the ability to resolve disagreements is almost comical. The director of the Office of Management and Budget is supposedly in charge, but the director’s ultimate grant of authority amounts to no authority all: “If a dispute remains unresolved … the Director … shall … direct the agencies party to the dispute to resolve the dispute.”

But a new bipartisan bargain doesn’t require complicated drafting. It only takes a few words for Congress to approve a gas tax or other taxes to fund infrastructure-modernization programs. And the radical change needed to reduce permitting from ten years to two years will not be made in substantive law—underlying environmental requirements, for example, would remain the same—but rather in authorizing specific officials to make and review decisions. Creating clear lines of authority is much simpler than defining the intricacies of a procedural labyrinth. The law can give the chair of the Council on Environmental Quality responsibility over deciding when there has been enough environmental review, and it can give the OMB director responsibility over resolving disputes among squabbling agencies. They will both be accountable to the president and, if necessary, to the courts. Common Good, at the request of relevant committees in Congress and with the help of two former Environmental Protection Agency general counsels, has already drafted proposed amendments that establish these lines of authority as well as oversight standards for the president and the courts.

The good news is that the political winds are shifting. Hillary Clinton recently proposed a $500 billion infrastructure initiative that included a call to radically streamline permitting and review processes. And Jeb Bush recently called for permits to be granted “within two years instead of ten.” With strong leadership, the nation can get there: If the Democrats cut waste and the Republicans provide funding, Americans will have better rules and better roads.

Philip K. Howard is chairman of Common Good, a regulatory and legal reform organization, a New York-based lawyer and civic leader and the author of several books, including The Death of Common Sense and The Rule of Nobody.

Robert Whitcomb: How to Speed Up Infrastructure Repair

  An irritated citizenry has blocked a bid by the Pawtucket Red Sox, employing very few people and with a mostly seasonal business, to grab valuable public land and erect, with lots of public money, a stadium in downtown Providence, on Route 195- relocation land. The plan would have involved massive tax breaks for the rich PawSox folks that would have been offset by mostly poorer people’s taxes.

The public is belatedly becoming more skeptical about subsidizing individual businesses. (Now if only they were more skeptical about casinos’ “economic- development’’ claims. Look at the research.)

Perhaps Lifespan will sell its Victory Plating tract to the PawSox. And maybe a for-profit (Tenet?) or “nonprofit’’ (Partners?) hospital chain will buy Lifespan, which faces many challenges. Capitalism churns on!

In any event, the stadium experience is a reminder that we must improve our physical infrastructure, in downtown Providence and around America.

Improved infrastructure will be key to a very promising proposal by a team comprising Baltimore’s Wexford Science & Technology and Boston’s CV Properties LLC for a life-sciences park on some Route 195-relocation acres. This could mean a total of hundreds of well-paying, year-round jobs in Providence at many companies. Tax incentives for this idea have merit. (I’d also rather fill the land slated for a park in the 195 area with other job-and-tax-producing businesses, but that’s politically incorrect.)

The proximity of the Alpert Medical School at Brown University, the Brown School of Public Health, hospitals and a nursing school is a big lure. Also attractive is that Providence costs are lower than in such bio-tech centers as Boston-Cambridge and that the site is on the East Coast’s main street (Route 95, Amtrak and an easy-to-access airport).

Rhode Island’s decrepit bridges and roads are not a lure. Governor Raimondo’s proposal for tolls on trucks (which do 90 percent of the damage to our roads and bridges) to help pay for their repair, and in some cases replacement, should have been enacted last spring. It’s an emergency.

It takes far too long to fix infrastructure, be it transportation, electricity, water supply or other key things. The main impediment is red tape, of which the U.S. has more than other developed nations. That’s why their infrastructure is in much better shape than ours.

Common Good sent me a report detailing the vast cost of the delays in fixing our infrastructure and giving proposals on what to do. It has received bi-partisan applause. But will officials act?

The study focuses on federal regulation, but has much resonance for state policies, too. And, of course, many big projects, including the Route 195-relocation one, heavily involve state and federal laws and regulations.

Among the report’s suggestions:

* Solicit public comment on projects before (my emphasis) formal plans are announced as well as through the review process to cut down on the need to revise so much at the end, but keep windy public meetings to a minimum.

* Designate one (my emphasis) environmental official to determine the scope and adequacy of an environmental review in order to slice away at the extreme layering of the review process. Keep the reports at fewer than 300 pages. The review “should focus on material issues of impact and possible alternatives, not endless details.’’ Most importantly, “Net overall (my emphasis) impact should be the most important finding.’’

* Require all claims challenging a project to be brought within 90 days of issuing federal permits.

* Replace multiple permitting with a “one-stop shop.’’ We desperately need to consolidate the approval process.

Amidst the migrants flooding Europe will be a few ISIS types. That there are far too many migrants for border officials to do thorough background checks on is scary.

Fall’s earlier nightfalls remind us of speeding time. When you’re young, three decades seem close to infinity, now it seems yesterday and tomorrow. I grew up in a house built in 1930, but it seemed ancient. (My four siblings and I did a lot of damage!) Yet in 1960, when I was 13, the full onset of the Depression was only 30 years before. The telescoping of time.


Robert Whitcomb: 4 policy changes to address infrastructure crisis

That America's physical infrastructure is  crumbling is doing ever more serious damage to U.S. economic and social health. Thus we send along word of a very important report from Common Good, the reform organization chaired by our friend Philip K. Howard. Please read this press release:

Delays in approving infrastructure projects cost the nation more than twice what it would cost to fix the infrastructure, according to a new report released today by Common Good, the nonpartisan government reform coalition. Those approvals can take a decade or longer, and the report shows that a six-year delay in starting construction on public projects costs the nation over $3.7 trillion, including the costs of prolonged inefficiencies and unnecessary pollution. That’s more than double the $1.7 trillion needed through the end of this decade to modernize America’s decrepit infrastructure.

Titled "Two Years, Not Ten Years: Redesigning Infrastructure Approvals,'' the report proposes a dramatic reduction of red tape so that infrastructure can be approved in two years or less. This can be accomplished by consolidating decisions within a simplified framework with deadlines and clear lines of accountability.

The White House Council on Environmental Quality (CEQ), for example, should have authority to draw lines on the scope of environmental review. To cut the Gordian knot of multiple permits, the White House needs authority to resolve disputes among bickering agencies. The report comes as the federal government considers funding for infrastructure projects, but funding alone is not sufficient.

Even fully funded projects have trouble moving forward. In 2009, America had the money (over $800 billion in the economic stimulus package) but few permits. In its five-year report on the stimulus, released in February 2014, the White House revealed that a grand total of $30 billion (3.6 percent of the stimulus) had been spent on transportation infrastructure.

In the current legal quagmire, not even the president has authority to approve needed projects. The report also comes as Americans are increasingly frustrated with the federal government’s inability to improve the nation’s infrastructure.

A nationwide poll of U.S. voters conducted for Common Good in June by Clarus Research Group found that 74 percent of voters would be more inclined to vote for a candidate for President who promised to take charge of federal infrastructure reviews to speed up the process; 79 percent of voters think there are no good reasons for infrastructure delays, which are mostly viewed as an example of wasteful and inefficient government.

In analyzing the costs of delay, the report includes the direct costs (legal, administrative, and overhead), the opportunity costs of lost efficiencies during the years of delay, and the environmental costs of antiquated infrastructure during the delay. These costs are estimated for electricity transmission, power generation, inland waterways, roads and bridges, rail, and water.

To rebuild America’s infrastructure on an efficient and timely basis, the report proposes four major policy changes:

• Public comment should be solicited before formal plans are finalized, as well as throughout the process. Input should be informal, not a matter of formal hearings and “building the record.” This change would help broaden public discussion and make government decisions more accountable.

• The scope and adequacy of environmental review should be determined by a designated environmental official. Review should focus on material issues of impact and possible alternatives, not endless details. Net overall impact should be the most important finding. Environmental review should generally be completed in no more than a year, and should not be longer than 300 pages, as set forth in current regulations. The report proposes that CEQ assume this responsibility.

• It is also important to eliminate the fear of litigation that leads project proponents to practice a kind of “defensive medicine” that transforms environmental-impact statements into multi-thousand page documents. Needed changes would: i) require all claims challenging a project to be brought within 90 days of issuance of federal permits; ii) require credible allegations that the review is so inadequate as to be arbitrary or, for permits, that the project violates substantive law; and iii) require that impact be measured against the overall benefit of a project.

• Multiple permitting should be replaced by a “one-stop shop.” If America wants new infrastructure on a timely basis, approvals must be consolidated. The new framework should preempt state law for interstate projects (similar to the Federal Energy Regulatory Commission’s authority over new gas pipelines), and give the White House authority to designate a single agency to balance regulatory concerns and issue permits for an interstate project.

“The upside of rebuilding infrastructure is as rosy as the downside of delay is dire,” said Philip K. Howard, chairman of Common Good. “America can enhance its competitiveness, achieve a greener footprint, and create upwards of two million jobs. Americans clearly want infrastructure improvement – not further waste and inefficiency. The question is: Will the federal government make it happen?”

The full report is available at For more information or to talk with Common Good Chairman Philip K. Howard, please contact Chelsey Saatkamp at 212-576-2700 x259 or

Common Good ( is a nonpartisan government reform coalition dedicated to restoring common sense to America. The  chairman of Common Good is Philip K. Howard, a lawyer and author of most recently The Rule of Nobody. He is also author of The Death of Common Sense.

Philip K. Howard: To help fix infrastructure, cut red tape

The deadly Amtrak derailment on Tuesday is just another symptom of Congress’s refusal to address the United States’ decrepit infrastructure. Amtrak is notoriously underfunded, with a huge capital expenditure backlog. While the cause of the crash is not yet determined, even engineer error may have been avoided if Amtrak had implemented “positive train control” to restrict dangerous speeds. But almost every category of U.S. infrastructure is in a dangerous or obsolete state — roads and bridges, power generation and transmission, water treatment and delivery, ports and air traffic control. There is no partisan divide on what is needed: a national initiative to modernize our 50- to 100-year-old infrastructure. The upside is as rosy as the status quo is dire. The United States can enhance its competitiveness, achieve a greener footprint and create upward of 2 million jobs .

So what’s the problem? Modernizing infrastructure requires money and permits. Congress needs to create a long-term funding plan and radically reduce the red tape that drives up costs and ensnarls projects in their infancy. Instead, Congress uses short-term fixes to get past the looming insolvency of the Highway Trust Fund. Congressional efforts to cut red tape are similarly weak .

Congress pretends that not spending money is prudent. But continued delay is not only dangerous but also costly. The longer we wait, the more our infrastructure will cost. Because of decades of deferred maintenance, the bill for repairing the Williamsburg Bridge in New York City, for example, was inflated tenfold in recent years, to $800 million.

Merely avoiding inefficiencies more than pays for new infrastructure — returning $1.44 on each dollar invested, according to Moody’s. Delays due to infrastructure bottlenecks cost about $200 billion per year on railroads, $50 billion per year on roads and $33 billion on inland waterways . America’s antiquated power grid wastes 7 percent of the electricity it transmits, or about $30 billion worth of electricity annually.

Funding won’t build much, however, without red-tape reform. Congress funded an $800 billion stimulus plan in 2009, but five years later only $30 billion had been spent on transportation infrastructure because no government agency had authority to approve projects. As President Obama put it, “There’s no such thing as shovel-ready projects.”

Red tape can consume nearly a decade on major projects. For example, raising the roadway of the Bayonne Bridge near the Port of Newark, a project with virtually no environmental impact (it uses existing foundations and right of way), required 47 permits from 19 agencies, and a 5,000-page environmental assessment. The approval process took five years. In San Diego, permitting for a desalination plant began in 2003 and was completed, after 14 legal challenges, in 2012. It will start producing fresh water this year — 12 years later.

Congress did not deliberately create this bureaucratic jungle. The jungle just grew, like kudzu. Environmental review statements are supposed to be 150 to 300 pages, according to federal regulations, and focus on important trade-offs. Nor was the proliferation of permits by design. As government got bigger, it naturally organized itself into silos, each with its own rules and territorial instincts. Many requirements are senseless in context — like requiring a survey of historic buildings within a two-mile radius of the Bayonne Bridge, even though the project touched no buildings.

Just as conservatives act as if funding infrastructure is imprudent, liberals in Congress defend multiple layers of review. Red tape is not the same as good government. It harms the environment as well as driving up costs. The wasted electricity from the obsolete power grid is the same as the output of 200 average coal-burning power plants — causing an extra 280 million tons of carbon to spew into the air each year. Delays in permitting new wind farms and solar fields and connecting transmission lines similarly result in extra carbon emissions. Traffic bottlenecks create exhaust fumes.

Infrastructure is unavoidably controversial. There is always an impact and always a group that is affected more than others. A wind farm or transmission line spoils views and can affect bird populations. A desalination plant produces a briny byproduct. Modernizing a port will disturb the ocean floor and increase traffic in nearby neighborhoods.

But delay on new infrastructure is far worse than these unavoidable side effects. An inefficient port reduces competitiveness and drives shipping elsewhere, requiring goods to be trucked longer distances. Delay in a desalination plant further depletes aquifers. All public choices involve tradeoffs. No amount of law can avoid that reality.

What is needed for infrastructure approvals is basic: Congress must create clear lines of authority to make decisions. Environmental review and public input are important, but such countries  as Germany and Canada achieve this in two years, not 10. They do this by giving responsibility to particular agencies to make practical choices that balance competing public interests — within strict time frames. For example, an environmental official should have responsibility to draw lines on how much review is sufficient. Similarly, one agency should have overriding permitting authority, balancing the concerns of other agencies and departments.

The opportunity here is transformational. With a two-year process and adequate funding, the United States can modernize its infrastructure at far less cost and with huge environmental and economic benefits. This requires Congress to make deliberate choices in the public good.

Philip K. Howard, a New York-based civic leader, author and lawyer, is chairman of the social- and legal-reform nonprofit organization Common Good. He's the author of the best-sellers The Rule of Nobody and The Death of Common Sense.

More reforms for Gina Raimondo

I used to see Rhode Island Gov. Gina Raimondo (and her communications chief, Joy Fox)  a bit when Ms. Raimondo was the state treasurer, after her highly successful run as a venture capitalist. She got elected governor as a person willing to take on the challenges of structural reform  after having displayed this courageous willingness when she  embraced, as treasurer, the brutally difficult chore of pensi0n reform.  Runaway public pensions have threatened to effectively bankrupt Rhode Island and some of its cities and towns. (Some of the cities are still on the edge.) Now many of us hope very much that she'll join with Common Good and other reform organizations to push to eliminate obsolete laws and to review the  inefficient and costly "system'' of federal mandates on the states. The National Governors Association has a project along those lines.

Changes in these areas would make state governments more effective and cost-efficient and citizens' lives easier and more productive.

To get a sense of what I'm talking about, read Philip K. Howard's The Rule of Nobody. He runs Common Good and is an admirer of Governor Raimondo's work as treasurer.



Philip K. Howard: Shipwrecked on ancient laws


A shipload of salt to deal with this year’s snow and ice on New Jersey’s roads has been detained in legal limbo in Providence Harbor, en route from Maine. The problem, detailed in the Feb. 19 New York Times, is that it’s illegal for a foreign-owned vessel to ship goods from one U.S. port to another. (There’s even a word for it, I learned. Domestic shipping is called "cabotage.")

Now, there’s nothing apparently wrong with the ship, which had just finished unloading its cargo in Maine and was available to take on the salt immediately. But an obscure 1920 law known as the Jones Act requires a U.S. ship, with a U.S. crew, on all domestic routes. There’s a cottage merchant marine industry and union that exists just because of this law.

In this era of free markets, one would think that protectionist laws from almost 100 years ago would have gone the way of the horse and buggy. But laws have remarkable staying power (as we saw two weeks ago with the continuation of New Deal-era farm subsidies). The same onerous process for enacting a law applies to repealing it, with one additional, almost insurmountable, hurdle: the law now is surrounded by an army of special interests who will do anything to defend it (think campaign money and ad hominem attacks on would-be reformers).

That’s why, in the strange culture of Washington, repealing laws is so rare as to be almost unthinkable. Getting rid of old laws violates the laws of legislative physics.

Laws pile up, year after year, like sediment in the harbor. Society, meanwhile, is increasingly paralyzed. The U.S. now ranks 20th in the world in ease of starting a business. This is because of thousands of laws like the Jones Act.

American democracy has a structural problem: There’s no political or legal imperative to clean the stables. The accumulation is so bad that, as I argue elsewhere, America should initiate a series of commissions, area by area, to recommend what are known as "recodifications" of law—new, simpler codes that reflect current national goals and priorities. Going forward, most regulatory programs should periodically "sunset," with an action-forcing mechanism (perhaps a constitutional amendment) that prevents Congress from simply re-enacting the same program in a midnight vote.

It’s impossible to run a government, much less balance public budgets, under the weight of a hundreds of laws and programs that are obsolete in whole or part. The weight grows heavier every year. It will break, sooner or later. Perhaps it’s time to start thinking about to fix it.

Philip K. Howard is a New York-based lawyer, civic leader and author. He is chairman of the legal and social-reform group Common Good and the author of , among other books, The Death of Common Sense and the upcoming The Rule of Nobody.

Philip K. Howard: The perilous search for legal certainty



You will profit by reading philosopher Simon Critchley's recent reflection on Dr. Jacob Bronowski and the dangers of certainty. People who think they possess a final truth, driven compulsively towards their view of certainty, often cause evil, whether they're religious fanatics like Savonarola or, as Bronowski discusses, the officials who devised the Final Solution.

A responsible human must look life in the eye, open to the moral and factual uncertainties presented by many choices in human dealings. Critchley: "There is no God's eye view, Dr. Bronowski insisted, and the people who claim that there is and that they possess it are not just wrong, they are morally pernicious. Errors are inextricably bound up with pursuit of human knowledge, which requires not just mathematical calculation but insight, interpretation and a personal act of judgment for which we are responsible."

Applying this principle of human responsibility for moral choices has applications throughout the range of human endeavor. Let's look at law for a minute.

Legal certainty is accepted orthodoxy. Of course,  law should be certain, we have been taught. Only then will people know what's expected of them, and not be fearful of arbitrary officials. In pursuit of certainty, laws have become ever more detailed. The new Volcker Rule regulating proprietary trading by banks is almost 1,000 pages long. The Affordable Care Act is almost 3,000 pages long. Nursing homes are typically regulated by 1,000 rules. In total, there are over 100 million words of binding federal law, and several billion words of state and local law.

Do all these detailed dictates achieve certainty? Of course not. Law is an unknowable jungle. Does all this law safeguard us against arbitrary officials? No, it's a legal minefield. No one can comply with it all. We're at the mercy of the state. Does all this detailed law make government a well-oiled, smoothly-running machine? HELP!! There's hardly any program, even the best of them, that doesn't waste vast resources in bureaucratic nonsense.

Public solvency is basically illegal in America. All this detailed law prevents the president, and any governor, from making the choices needed for fiscal responsibility.

Our obsessive quest for legal certainty has left our society, ironically, in a very uncertain state. The only cure is to abandon legal certainty and embrace human responsibility as the operating philosophy for most activities of government.

Canadian management theorist Brenda Zimmerman makes the distinction between activities that are "complicated"--like engineering, or rocket launches, or surgery--and activities that are "complex"--such as raising a child, or running a healthcare system. Complicated activities profit from detailed rules, checklists, and protocols. Complex activities require balance, and tradeoffs, and moral choices. Detailed rules cause failure.

Law can support a free society, I argue in my new book, The Rule of Nobody (due out in April), only when it abandons this obsessive quest for certainty. Law should instead set goals and principled boundaries, leaving room for humans to make practical and moral choices. Real people, not rules, make things happen. Automatic government is a false philosophy. Democracy is supposed to elect people to act on their vales, not to avoid them by mindlessly applying detailed rules. Of course people will sometimes abuse this trust. Look at the George Washington Bridge lane-closings. But officials there are paying the price. The worst system is one where things fail, and there's no one to hold accountable. That's what we have today: The Rule of Nobody, As Jacob Bronowski passionately explained, avoiding human responsibility is the root of much evil.

Philip K. Howard is a New York-based lawyer, civic leader and writer.  He is chairman of Common Good, a nonprofit social- and legal-reform organization. Mr. Howard is the author of, among other books, The Death of Common Sense. For more of Mr. Howard's Daily posts, visit and follow him on Twitter:

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