February 24th, 2015
American democracy is basically run by dead people. Past generations of legislators and regulators wrote the laws and regulations that dictate today’s public policy, allocate most of the annual budgets, and micromanage public choices.
No wonder Washington works so poorly. Imagine if you had to run a business by following every idea that any former manager ever had.
In 1933 Congress enacted the Agricultural Adjustment Act to alleviate dire conditions among farmers during the Depression. About 25 percent of the population lived on six million farms at that time. The collapse in global markets left farmers without any assurance they could feed their families and the law guaranteed a floor price through direct subsidies, basically. Cotton farmers were among the recipients.
Today, eight decades later, just 2 percent of Americans live on farms that are much larger and mainly corporate-owned. Yet the statutory subsidies have never ended. Cotton farmers have received about $2.5 billion a year over the last decade.
Medicare will soon increase the reimbursement categories from 18,000 to around 140,000 – including 21 separate categories for “spacecraft accidents,” 21 more for bathtub injuries, and 12 for bee stings. I’m sure, with the help of comedians over a drunken weekend, we could expand the list of possible human accidents toward infinity.
Democracy, in effect, has become a one-way ratchet. No wonder Americans have lost faith. It doesn’t matter who we elect. The law’s in charge, whether or not it makes any sense.
America is losing its soul. Instead of creating legal structures that support our values, Americans are abandoning our values in deference to the bureaucratic structures.
Environmental review was never intended to delay projects for a decade. Special education was never intended to dominate school budgets.
In 2011, firefighters stood on the beach in Alameda, California and watched a suicidal man flailing in water 150 yards offshore. None made an effort to rescue him because the municipality, dealt with budget cutbacks, hadn’t “recertified its firefighters in land-based water rescues.”
The firefighters were told there might be unspecified “legal liability” to unspecified parties for uncertified rescues. They watched for an hour until the man finally succumbed in the 60-degree water and drowned.
Before anything else, we must shine a light on how miserably Congress has defaulted on its responsibility to adjust law in America. No elected leader in memory has sought to reconcile existing American law with current priorities.
Management expert Peter Drucker suggested that all agencies and programs be periodically reviewed by asking these questions: “What is your mission? Is it still the right mission? Is it still worth doing? If we were not already doing this, would we go into it now?” I would add: Is this a sensible way of achieving the public goal?
I doubt that 10 percent of federal, state and local statutes would emerge unscathed. Environmental review was never intended to delay projects for a decade. Special education was never intended to dominate school budgets. Civil servants were supposed to be honored professionals in a “merit system,” not a caste of untouchables.
Incremental change, however, will do nothing, because reforming this or that stupidity doesn’t fix the others. Nor is blanket deregulation the answer. Most laws embody goals that the majority of Americans, including me, consider vital: worker safety, environmental protection, social services for the needy. But the complete lack of discipline – an almost “lawless passion for lawmaking,” as historian Henry Steele Commager described it – drags down productive activity throughout society.
The Organization for Economic Cooperation and Development (OECD) has concluded that America’s haphazard legal structure “will increasingly penalize the United States as the pace of globalization and innovation steps up.”
New leadership alone can’t fix the logjam. Just put a virtuous person in charge, we hoped when electing Barack Obama in 2008, the freshest new face in generations: “Change we can believe in.” Or, two years later, just elect Tea Party ideologues committed to reducing government’s size. That hasn’t worked either.
Fixing American democracy requires a new vision for how government can work. Officials must see their job as making vital choices for the public good – not tending to the status quo. Changing a culture is hard. Anthropologists say cultures must first collapse, generally speaking. That’s why fixing the worst symptoms – like campaign finance, rigged primaries, or Congress’ arcane rules – is unlikely to suffice.
Government must be taken down to its constitutional foundations, with programs and structures simplified to allow officials to focus on the common good. And we need to return to human responsibility. Here are some needed changes:
- Clean out the current mess so officials have space to make necessary choices.
- Clarify authority and accountability so officials can no longer hide behind rules.
- Reengage citizens by creating new mechanisms for citizen oversight.
Ask yourself: How can government balance public budgets, or adapt to new challenges when legislatures are unable to change old laws? How can America remain competitive when simple business ventures require dozens and dozens of approvals?
Vast change will disrupt the habits of those within, of course. Many will scream bloody murder. Changing democracy is inconceivable to them. Once in place, however, the new structure will seem entirely ordinary, just a common-sense way to make public choices.
Law will be coherent. Public debate over law will focus on what’s right and practical. The president will have authority to manage the executive branch. OSHA will focus on worker safety, not sanctions for immaterial noncompliance. Social services will be delivered locally, by responsible people using their own judgment. Teachers can be themselves, accountable for their effectiveness, not isolated metrics. Political hypocrisy and self-interest will be given the lie by trusted civic watchdogs.
My overhaul plan also includes constitutional amendments to dislodge the status quo, informed by successful legal transformations in history:
- All laws with budgetary impact should sunset periodically.
- The president must have effective executive powers restored for managing the branch.
- Judges must act as gatekeepers, dismissing invalid claims.
- America needs a council of citizens to oversee government.
- Fixing democracy is a moral imperative for citizens, not just public officials.
America needs an intervention, in short. The process of recodifying law almost always happens the same way: A small committee is formed to recommend a simplified code in a specific area, and then the proposal is debated and voted on by the legislature or whoever has lawmaking authority. This how America created a “Uniform Commercial Code” in the 1950s, and how Napoleon and Justinian created their famous codes.
The key to fixing democracy is motivating ourselves to make it happen – the system won’t fix itself and reactive changes during a panic will be ugly. The new movement should have a platform of core principles of democratic governance, including a plan for spring cleaning. Most important, it should be led by people who are not seeking power for themselves.
Philip K. Howard is an attorney and chair of The Common Good in New York City. This article is adapted from his new book, The Rule of Nobody: Saving America from Dead Laws and Broken Government.