Red tape rules America. Philip K. Howard joins Geoff Kabaservice to discuss how thousands of nonsensical laws hamper any good the government can do. Years-long environmental review harms the environment because it means that infrastructure isn’t updated. Regulations intended to protect people destroy small businesses.
And America isn’t about to change because partisanship encourages the tangled web of inefficiency. Democrats and Republicans refuse to work together to craft meaningful policies and break down harmful regulations. Republicans seem to be driven by the policies that line their pockets rather than sensible reforms that align with conservative principles. And Democrats, while professing to be interested in helping minorities, conserving the environment, etc., often jump straight into government expansion without addressing the myriad of inefficiencies that come with it.
Can America untangle itself from the red tape and break out of its partisan gridlock?
Philip K. Howard: So everyone accepts this kind of red tape jungle that we’ve created, as if it’s a state of nature. That somehow Moses came down with the Ten Commandments and it became the Ten Billion Commandments, and everyone has to do what they say instead of saying, “Wait a minute. No we don’t.”
Geoff Kabaservice: Hello. I’m Geoff Kabaservice for the Niskanen Center. Welcome to the Vital Center podcast, where we try to sort through the problems of the muddled, moderate majority of Americans, drawing upon history, biography, and current events. I’m honored to be joined today by Philip K. Howard. He is senior counsel with the Covington & Burling law firm. He is the founder of Common Good, which is a nonprofit advocating for the simplification of government. And he is the author of numerous books that have had a major impact on public debates over law, bureaucracy, and effective government, starting with the 1995 bestseller The Death of Common Sense and including works such as The Collapse of the Common Good, Life Without Lawyers, and most recently his 2019 book Try Common Sense: Replacing the Failed Ideologies of Left and Right. Welcome, Philip.
Philip K. Howard: Nice to be with you, Geoffrey.
Geoff Kabaservice: Thank you. Thank you for joining me. You know, I have a vivid recollection of having bought The Death of Common Sense not long after it came out. And like so many other people, I was really enormously influenced and impressed with your warnings about the dangers of legalistic and bureaucratic overreach in making America essentially ungovernable. And there was a young woman I knew at the time who had just passed the Foreign Service exam, and in a deeply misguided attempt to win her affections I bought her a copy of The Death of Common Sense. I think flowers would have been a better idea. But I’m still very impressed by that book and all of your subsequent works. I usually ask people who appear on this podcast to tell me something about themselves and where they grew up, and what their influences were in their educations and careers. So could you tell me some of that?
Philip K. Howard: Sure. I grew up in eastern Kentucky. My father was a Presbyterian minister, so we lived in several small towns. So I grew up in a fairly, I’d say, nineteenth-century environment: farms and local stores and Main Street and all of that. You learn positive as well as negative lessons growing up. So in the South, nobody ever says what they really think, which of course makes half the people go crazy. But you also learn about how things work, and self-determination. People were very self-reliant in these little places, and that was a positive lesson about how things get done, who has moral authority in the town and what they say matters, who goes the extra mile and who doesn’t, all that kind of stuff. And so it was a fairly rich upbringing, I’d have to say.
And the other formative part of my childhood was when I was in college, I got a job as part of a federal poverty program at the Oak Ridge National Lab, and they saw that this person who might’ve been assigned to mowing lawns there happened to be going to Yale. So they pulled me out of the work crew and I became the gopher to a Nobel Prize winner, Eugene Wigner, with whom I worked for three summers and ended up publishing papers on post-nuclear war recovery and things like that. But being able to hang out with some of the smartest people in the world and shoot the breeze at lunch, which is what we did — we had a little group of twelve people in the civil defense section at Oak Ridge — was just enormously influential to me. And it gave me a sense of kind of what I knew and what I didn’t know, and maybe what was valid about my worldview and what wasn’t. And it was both an inspiration and a reality check that has stayed with me for my whole life.
Geoff Kabaservice: That’s interesting. My sister is an advanced practice psychiatric nurse in Oak Ridge, Tennessee, so I’m somewhat familiar with what’s involved there.
Philip K. Howard: Yeah, it was a great community. I subsequently learned… I was working on my, I think, my third or fourth book, and one of the people whose book was very influential for me was Michael Polanyi’s 1955 book Personal Knowledge, about the nature of human judgment and how people get things done, and how unrationalistic it is, how instinctual it is, and how so much of the brain — so much of the smart part — is in the subconscious. And it’s in trial and error, as he put it. He doesn’t use this word, but it’s like we muddle our way. We sort of flounder back and forth to get to the right answers. It’s not a question of thinking it through. At some point, I was looking at a biography of Eugene Wigner, and it turned out — which I had forgotten, it might’ve been stored in my medulla someplace — that his mentor was Michael Polanyi. So I thought I had come to all these conclusions all by myself, but it was probably just a result of these lunches we had where Wigner was channeling Polanyi.
Geoff Kabaservice: How about that. Am I correct in thinking that you went to the Taft School?
Philip K. Howard: Yes.
Geoff Kabaservice: And then you were at Yale.
Philip K. Howard: Right. I went to Taft. I had never been north of Louisville before, but I got a scholarship to this boarding school called Taft and showed up there in September. And then time to go to college, I never visited a college. They just told me where to apply. I went to the one they told me to go to, which also gave me a scholarship, which was Yale. And it was fantastic.
Geoff Kabaservice: I wrote a biography of Kingman Brewster, who was the president of Yale during your undergraduate years. And of course, you were in the Class of 1970, which famously was the pathbreaking class admitted by the new dean of admissions, Inky Clark. And you also were at Yale during the high point of student radicalism, which was the May Day 1970 protests against the Black Panther trials.
Philip K. Howard: All of that is correct. I didn’t really know Kingman Brewster very well. I saw that you’d written his biography. He was an extremely interesting, I think, and distinguished person. But the tide of the ’60s was just so strong, the tide towards all those things to make up for the sins of past generations with the environment and the civil rights and such — it was so strong that really nobody could resist it. And that included Yale.
Geoff Kabaservice: I could go into great digressions about Kingman Brewster. But it is significant, I think, that he was the first lawyer to be a president of Yale. And he was deeply influenced by the Legal Process School that had developed at Harvard after World War II, which was in its way a kind of moderate school of jurisprudence, trying to balance between formalism on the one hand and legal realism on the other, which basically said law is what the courts think it is. So that always struck me as kind of interesting in terms of trying to figure out his style as an administrator.
Philip K. Howard: Yeah. I think what happened to the Legal Process School, though, is it became its own sort of extreme ideology, where the goal was giving everyone a chance to make an argument. So you have this society today where anytime anybody doesn’t like something… They don’t like the fact that they didn’t get a promotion, they bring a lawsuit. They don’t like the fact that there was an accident, they bring a lawsuit. They don’t like what someone says hurts their feelings, or somehow injures them or makes them feel… What’s the right word today, when people say…
Geoff Kabaservice: They could be offended, but even now it’s “harmed.”
Philip K. Howard: Yeah. That somehow or another, that there’s a way of creating the world in which if only we talk about it enough, if only we’re sensitive enough, everyone will be happy. And of course, that’s one of the core flaws of the current both legal structure and public narrative, which is that that utopia does not exist. There is unavoidable conflict. It has to be resolved or moderated one way or another, but it’s not going to be resolved just because you have a legal hearing or you sit in a room together.
Geoff Kabaservice: You observe in Try Common Sense that about half a century ago, there grew up in the law schools a legal philosophy of correctness, the idea that every person responsible for making a public decision must be able to demonstrate its correctness either by compliance with a rule or metric, or by objective evidence. Did this philosophy coincide with your schooling at the University of Virginia in the early ’70s?
Philip K. Howard: Absolutely. I was taught that law, if you only had enough of it, you would come to the correct answer. And again, that’s just not correct. I mean, if you have all kinds of legal protections and hearings and right to object, let’s say in human relations, let’s say with a teacher… If you put something negative in the teacher’s file and they have the right to file a grievance and have a hearing, no one’s ever going to put anything in the file. There’s too much trouble to have to go through the hearing. And then at one point, we at Common Good did a study of how many potential steps there are to fire a teacher or to discipline a student and stuff. I think in New York City, the steps to fire a teacher… I think there were 78 potential steps you had to go through. Discipline was, I think, in the ‘60s. I mean, it’s legal process run amok.
And so the process is not free. It has a cost. And so whoever can invoke that much process in effect has power over the person who supposedly has responsibility for the working of, say, the school, because that person doesn’t have the time or the bandwidth or the energy. And by the way, it is impossible to prove that this teacher bores students or doesn’t try hard. All the things that are important about a person’s performance — their character, their effort, their cooperativeness, all those things — none of those things are objectively provable. They’re readily judged, that judgment can be second-guessed, but they’re not provable. So we’ve created this crazy legal system based on a fiction that right and wrong is provable. It’s not provable. Again, you can have checks and balances against abuses of judgment, but you can’t prove right and wrong.
Geoff Kabaservice: I saw that at one point you referred in passing to Grant Gilmore, who was a professor at the Yale Law School. I’ve always been struck by a quote of his that, “In heaven, there will be no law and the lion will lie down with the lamb. In hell, there will be nothing but law, and due process will be scrupulously observed.”
Philip K. Howard: Yeah, welcome to America.
Geoff Kabaservice: So it does seem kind of interesting to me that two of the presences that hover over your most recent book are Friedrich Hayek on the one hand, the Austrian classical liberal economist, and Arthur Schlesinger Jr., the Cold War liberal Democratic historian. That would seem to be a kind of contradiction to some people at least.
Philip K. Howard: Yeah, I don’t see them as contradictory whatsoever. I mean, both of them were responding to extremes of the other side. So Hayek got his start and his first break was The Road to Serfdom, which is a brilliant book written in response to totalitarianism, published in the early ’40s. I think it was during World War II. And so he explained the inevitable failure of central planning, because it disempowered people from making anything work. It’s a profoundly anti-human philosophy. Schlesinger was more interested in the abuses of the people in charge of the status quo, and so was liberal and such. But he also wanted things to work. He wasn’t against human responsibility and human leadership. He wrote books about that. And he had that great book toward the end of his life called The Disuniting of America about the craziness of the civil liberal theory.
I happened to know Arthur quite well, because he was married to my wife’s first cousin, so we used to spend holidays together. I had this great moment at Christmas, maybe 1993 or something, a couple of years before The Death of Common Sense came out. And I said, “Hey, Arthur, I think I’ve figured out what’s wrong with law.” And he gives me this skeptical look and raises his eyebrow: “So tell me, Philip.” So I said, “It can’t be precise, because if you make it too precise, then it becomes central planning. It doesn’t leave room for people to adjust to the circumstances.” And he gave me another quizzical look and he said, “But Philip, it’s the law.” I said, “Yeah, I know it’s the law, but we’ve tried to create this system of law that doesn’t honor human values and the complexity of life, and it is getting worse every year. It just doesn’t work.” And he walked away.
Philip K. Howard: I eventually sent him the manuscript of the book, and he wrote me this wonderful note back saying, “I haven’t read such an important book in years. I fully subscribe to everything that you say here. How can I be helpful?” From being highly skeptical, he was extremely generous and helpful in getting the book off the ground.
Geoff Kabaservice: Yeah, I saw that you listed him on the dedication of Try Common Sense as one of your early mentors, along with Eugene Wigner and some others. So how did you come up with the idea to write The Death of Common Sense?
Philip K. Howard: Well, first of all, I was always interested in public policy. And when I got out of Yale… I studied economics at Yale, and then went and worked… I’d worked at Oak Ridge, and then after college I worked doing research for a foundation that had been spun off from the Ford Foundation called the Fund for the City of New York. I was doing policy work. But I couldn’t find a career in public service that appealed to me. I didn’t want to be bossed around by some jerk who happened to feel like it or something. So I went to law school and came out and worked at a big Wall Street law firm, but still had this public service itching. So I became active in civic affairs. I became effectively the chair of the zoning board in Midtown Manhattan when I was in my twenties. I got fired because of all these activities, and then started my own firm. I didn’t have time to do that. I was chairing public hearings every month, and so it took too much time.
So I became involved with a civic group called the Municipal Art Society — Save Grand Central, all that sort of thing. Jackie O was on the board. And I quickly became an officer and then the chair of that for number of years. So all the big battles in the ’80s, ’90s, early 2000s having to do with land use, I was involved with or helping to lead: stopping a building that would cast a shadow across Central Park. I was less involved in saving Grand Central, but somewhat involved in that. I chaired the committee to put up the Tribute in Light memorial for 9/11. So I was very active in civic affairs.
And in the course of doing that, I kept asking myself: Why can’t people who want to do the right thing in government do what makes sense, do what they know makes sense? Why are they trapped by this process and why are they trapped by these rules? And I didn’t set out to write a book. At some point I thought I might write a long essay or something. I just was curious: What is it about our legal system that doesn’t let public officials do what they know is right? That was my question.
And so I was a smart enough kid and everything, but I’d been, in truth, an indifferent student. So I was reading… And then I realized that I needed more help than that, so I hired the brother of a friend of mine who was an intellectual historian at Claremont to be my tutor. I wasn’t trying to write a book, I just wanted to understand where this stuff had come from. So for over a year, I went back and I read for the first time, Hayek. I read it, re-read it. The Constitution of Liberty, other books. I was reading Aristotle, I was reading Emerson. I was going through all these different traditions, trying to understand how the great thinkers thought that choices should be made. How should public choices be made? How should societies be led?
But because I studied microeconomics, I was really particularly focused on how is it that people make choices that work. What is the process? What is it that makes a good teacher a good teacher? What is it that makes a mayor popular when he’s running a city effectively? What are the daily nuances of judgment that make anything work? And the more I looked into it and was reading all this stuff — it was a wonderful year — the more I realized there was something wrong, something terribly wrong with the way we’d organized it. And I thought I was close to something, and then all of a sudden I started having panic attacks. I’d never had a panic attack. I mean, I didn’t even know what one was. You know, I’m sort of a laid-back kind of guy. And my wife said, “Give it up. This is crazy. You’re just driving yourself nuts trying to figure this out.”
And then finally, one day, I had this epiphany — which is what I told Arthur Schlesinger — which is: You can’t create a system that instructs people to do things correctly. That is beyond the capacity of both humans and beyond the complexity of life. And we’ve invented this system that undermines the kind of assumption, but rarely stated in all those great thinkers: that nothing works unless a person on the spot has the power to perceive the circumstances and to make a choice that balances all kinds of things, risk against rewards, timing, costs. You know, there’s just the almost infinity of conflicting values and circumstances required for the simplest judgment.
I mean, how to dig a hole, how to dig a hole to put in a pole? Okay, should we dig it here? Should we dig it there? Do we dig it straight down, up? There’s a rock there, should we move it a little over here? You know, I mean, everything is more complicated: how to be a janitor. Everything is more complicated than we think it is. And we’ve created this structure based on a fiction.
Geoff Kabaservice: How would you describe yourself politically?
Philip K. Howard: Well, for most of my life, I was a registered Democrat. But I’m now a registered Independent, because I don’t feel comfortable in either home. I agree in the role of government and an interdependent society, I think that’s important for the environment and other issues. I agree in trying to help people, you know, that’s a sort of a liberal thing, bring people up. But the Democrats are truly shackled to interest groups that make it impossible for them to make things work: the public unions, the trial lawyers, others. So they’ll never do what’s needed, for that reason. I can tell you many stories.
And the Republicans in recent years especially — not in the old days, not in the Howard Baker days, but you know, the Howard Baker and Ronald Reagan days, but more recently — you know, they’re mean and selfish. And why is it that every position taken by conservatives happens to line their pocket? Is there no public position that would actually be good for everyone that they could agree on, on some conservative principles: stewardship for the future with the environment, for example? Are there no principles like that? Because it’s hard to find them in the current Republican Party. You know, Donald Trump was the epitome of that: this sort of solipsistic approach to governing. The kind of “just say no” attitude of Mitch McConnell…
Geoff Kabaservice: I spent much of the ‘90s trying to define moderation, and I did not succeed. But I was interested to see that when your book came out, you were often described as a radical moderate. And I think, you know, that part of that was that on the one hand, you were articulating a somewhat conservative critique of overreaching government and bureaucracy. But somewhat counter-intuitively, your remedy actually lay in part in empowering bureaucrats and civil servants in making government work.
Philip K. Howard: Right. Yeah, so let’s talk about that for a second. First of all, what’s overreaching about government has at least two dimensions: the goals of government and the execution or implementation of government. So in some respects, the goals of government are overreaching. And I could give you lots of examples of obsolete laws or subsidies, or whatever of the like. But in many respects — I would argue in most respects — what’s most overreaching about government is its implementation.
A small business shouldn’t get a fine for not having a Material Safety Data Sheet for Joy dishwashing liquid on the premises. No one is in danger of drinking Joy dishwashing liquid — unless they deserve it. So, you know, the apple orchard owner shouldn’t have to cover the apple cart with a cloth, for the five-minute ride from the trees to the barn to be washed, to protect them against bird droppings. Because as it happens, those apples have been growing for five months on the trees without any protection against birds, and in another five minutes it’s going to make no difference whatsoever since they’re about to be washed anyway.
So when you have thousands, literally tens of thousands (and in the federal government 150 million words) of specifications of exactly how to do things correctly, that’s not only overreaching, it’s grounds for revolution. But it’s not that we don’t want clean apples or that we don’t want a safe workplace. We do want those things. But the implementation of those things drives people nuts.
So Republicans have tended to look at the failures of government as being over-regulation and the solution to be deregulation. That’s way too simplistic. And I’ve argued most recently in a Republican policy journal, the Ripon Forum, that they should focus on how government works — not give up on overreaching of goals, but focused on how government works — and they’ll get a lot of votes. Because it’s how government works that drives people nuts. The fact that a teacher can’t run a classroom because she doesn’t have the authority to maintain order in the classroom anymore — that’s madness.
And that doesn’t mean that the solution is to let every teacher be Atilla the Hun and carry paddles and hit students. That’s not what we’re arguing for. We’re arguing for general principles that honor the fact that a teacher can’t go to a hearing every time she sends a student out of the classroom because he’s disrupting the learning of everyone else. So Republicans, I think, have muddled the narrative as everyone has in this sort of Manichean narrative of public policy: right/wrong, good/bad.
You know, it’s like we’re teaching chimpanzees to speak or something when we listen to the public narrative. It’s just crazy. You know, “America is about truth and justice.” “America is about slavery.” Well, neither one of those is true. It’s much more complicated than that. And that’s true with every situation in life. So the narrative isn’t honoring the judgment and the agency of individuals on the ground, whether it’s the apple orchard person, or the small business person, or the teacher, or the nurse, or whatever.
Geoff Kabaservice: I was struck by an observation you made, a verdict you rendered, on the two political parties. On one page you said, “Republicans don’t actually want to govern. Republicans attack the regulatory state but refuse to take responsibility for making the hard choices needed to fix it.” But then on the other page, you said, “Liberals want government to do more. But today it’s hard to find liberal leaders like Jimmy Carter and Al Gore who focused on how government actually does things.”
Philip K. Howard: Yeah, I mean, it’s crazy. I mean, it literally is crazy. So what is the governing vision of Republicans? Ask yourself that. I dare you to try to find one. There is none. It’s just, “Get rid of it. Just say no” — at the moment. I think there’s a huge… By the way, we’ll get to this, but there’s a huge opportunity there, the fact that Republicans have no vision. And the Democrats think that having a virtuous goal is all that’s needed: “Let’s have more government, let’s help minorities, let’s be for the environment.”
And so we have this first trillion, two, maybe right now, and then maybe another three and a half trillion. Well, I hate to break the news to them, but if you really want to clean up the environment, it’s all about changing the daily habits of people. It’s not mainly about throwing money at electric charging stations. It’s about weaning people off of oil by user charges. It’s about identifying the sources of methane that come out of landfills and farms and such, and actually changing the way we eat and live.
Well, those things are hard. Those things involve offending interest groups. So the Democrats don’t have anything about that. And that’s what’s really important about cleaning up the environment, is changing our habits. It’s not about throwing money at electric buses. I mean, I’m all for electric buses, but that’s just — it’s like a token observation. You know, what’s needed is to change habits, and that requires offending special interest groups.
Geoff Kabaservice: If I’m remembering correctly, you assisted then-Vice President Al Gore in the mid-‘90s with his National Performance Review, which also became known as the National Partnership for Reinventing Government.
Philip K. Howard: Yeah, I did. I thought it was a great initiative. I mean, they blinked at a couple of important reforms, but the instinct was completely correct in my view.
Geoff Kabaservice: And why have Democrats lost that focus on the importance of reinventing government?
Philip K. Howard: I don’t know why the narrative has become so black-and-white: either you’re for government or against it. I think it’s a combination of factors, and the blame could be laid on all sides. George W. Bush was not a thoughtful president in this respect. Karl Rove, et cetera. — I tried to work with them some, but they were really interested in attacking government. And so that led the left to be for government, and that’s what it was all about. And then Obama gets elected, and of course nobody’s smarter or brighter than Obama. But Obama — whom I don’t know —thought, probably in some ways accurately, they were smarter than everybody else. But he had never thought through these issues of implementation. It’s just not how he thought. And so they had all this money that was going to be used for infrastructure when the great recession came along, and nobody thought about how you get stuff built.
So it turned out, quote, “There’s no such thing as a shovel-ready project.” 3.6% of the money ended up getting spent on transportation infrastructure — literally almost nothing. And Obama basically said, “It’s too bad.” Instead of saying what FDR would have said: “This is crazy,” and told Harry Hopkins to go get them approved the next day and put a bill in Congress saying, “I have the power to approve everything tomorrow. Forget about all those laws — we’re going to make an exception right now and build infrastructure.” They didn’t even think that way.
So everyone accepts this kind of red tape jungle that we’ve created, as if it’s a state of nature. That somehow Moses came down with the Ten Commandments and it became the Ten Billion Commandments, and everyone has to do what they say instead of saying, “Wait a minute. No we don’t. We need to build new infrastructure. So here’s a one-page law that says for the next year, for any project that is beneficial to the environment, we will have a two-month process,” or a two-year process, or whatever it is. You could pass a one-page law that would authorize the president to do that. And they didn’t even have the idea of doing that.
Geoff Kabaservice: On the other side of the aisle, I believe that in 2017 you joined President Trump’s Strategic and Policy Forum, which was intended to be a group of CEOs and business leaders who would inform the president on the ways that government policy was impacting economic growth, job creation, and productivity. But that a group, of course, disbanded in the controversy that followed Trump’s remarks about the events in Charlottesville just a few months later. You seem to have found that a disillusioning experience.
Philip K. Howard: First of all, I had dealt with Donald Trump as a civic leader, so I suffered no illusions about who he was. And just for the record, I did not vote for Donald Trump. But Trump was not wrong in everything that he said or did, and he actually had a number of good people around him. And I was asked to come on board in order to help with the infrastructure. And in fact, they did a number of the reforms that I had suggested in a paper I’d written, “Two Years Not Ten Years,” in 2015, where I’d analyzed the cost of delay in permitting and had found, by the way, that lengthy environmental reviews almost always were dramatically harmful to the environment, because they delay the fixing of bottlenecks.
Geoff Kabaservice: Yeah, that was a significant paper from Common Good, “Two Years Not Ten Years: Redesigning Infrastructure Approvals.” And you would think, again, that there’s something in it for both sides, because Republicans should understand that what you call the six-year delay in starting construction on public projects costs $3.7 trillion to the economy, and Democrats should understand that this delay actually has a material negative effect on the environment itself.
Philip K. Howard: That’s right. But the environmental groups who initially supported the paper —and Hillary quoted it in the 2016 campaign and such — after Trump got elected opposed the paper because they didn’t want Trump making those decisions. And so they literally just flipped gears, and they went from forward and into reverse and started attacking the paper. And now the new Senate infrastructure bill has put the Trump reforms back in the form of law; Biden had undone them. So it’s now part of the agreed-upon bipartisan bill, and a bunch of the environmental groups who were opposing it, even though it’s helpful to the environment. And so one of the arguments they’re using now is that it’s harmful to environmental justice, that having a two-year process somehow will hurt the interests of minorities and others.
So unpack that one. Well, why is that? Why couldn’t we consider their factors and their potential harms within the two years, the same way they do in every other developed country? Why does it take longer? It’s because it’s not really about time. It’s about using the threat of delay to extort money or other concessions from whoever’s doing the project. And so the reason people are opposing these reforms — which are really quite neutral and pro-environmental because they get projects off the ground — is because by giving up the unilateral veto that the current delay takes… “We will sue you for ten years to prevent this power line unless you give us a hundred million dollars.” Or in the case of one project that I know about in Washington, D.C., where a railroad was building an extra rail line to relieve a bottleneck, which was going to help the environment, on an existing right-of-way, largely invisible to the public, so that it actually didn’t require almost any approvals — they nonetheless refused to give them the permits unless they paid money, and they were going to delay it.
So you have law that has become this kind of extortion racket, where people use process as a way of getting something for themselves. Well, is that fair? Is that the way law is supposed to work? I don’t think so. It’s like highwaymen holding a gun to your head. And so it’s gotten pretty cynical on both sides.
Geoff Kabaservice: You appeared on the No Labels podcast. Does Common Good have a formal relationship with No Labels?
Philip K. Howard: We don’t have a formal relationship. But I was around when they were created and part of the discussion group. And I’m very much sympathetic with their approach. No Labels is interesting and has been effective, to the extent anybody can be effective in Washington today. It’s been effective by finding moderate positions on things that need to get done and built, and getting some leaders of both parties to support it.
Geoff Kabaservice: And the Problem Solvers Caucus as well in Congress.
Philip K. Howard: Yeah, with Josh Gottheimer and Tom Suozzi and a lot of good, many of whom I know, those members. But they’re dealing with the art of the possible, of what’s politically possible — which is a kind of a narrow range today, as you know, because politics is so polarized. What Common Good’s interest… So we’re sympathetic to that, but our interest is in changing what is possible. We’re not interested in doing what is currently possible. Because I think the current system ultimately has grown out of this rotten root, which is to avoid human responsibility by substituting law — whether it’s detailed rules or legal processes — for human responsibility and accountability.
And ultimately, I don’t think anything’s going to work well — whether it’s the healthcare system, school system, or the police system, which they couldn’t even reassign Derek Chauvin — until we understand that the current legal jungle needs to be replaced by a framework of goals and principles that give people on the ground the chance to take responsibility and give other people the freedom to hold them accountable.
Geoff Kabaservice: Since you mentioned the infrastructure bill that just passed the Senate, I think a lot of people even a few months ago would have said that it was impossible for a Democratic bill to have nineteen Republican senators signing on. And in that sense, the bill might seem to represent a triumph of bipartisanship and deal-making. But on the other hand, how would you evaluate the bill that came out?
Philip K. Howard: Well, I think it’s a bill which in prior decades would have been completely uncontroversial. There would have been no news to the bipartisanship involved in it, and it could hardly be more boring: “Let’s fix broken roads and bridges and build transmission lines that will be important for the environment as well as in making sure everybody has sufficient electricity among the different regions.” So the fact that it’s news that nineteen Republican passed just shows how far we’ve slipped. And the reason nineteen Republicans voted for it is because the American public overwhelmingly thinks this is the right thing to do. They’re not going to be able to fool Americans into thinking that fixing a bridge is somehow a liberal plot to take money from rich people or something. So it’s good news that it happened, but America needs a lot more than that.
Geoff Kabaservice: Is there anything in the bill that makes you more confident that more of the money will actually go toward actual infrastructure construction as opposed to the Obama infrastructure plan?
Philip K. Howard: Well, I think that the reforms that they put in… One federal decision, for example, is one of the reforms. They have a presumptive limit on the number of pages for environmental reviews. They have a presumptive time schedule that meets the schedule that I recommended in “Two Years Not Ten Years,” which is two years. But what it didn’t have… Someone asked me how good the reforms were. And I said, “Well, I’d give those permitting reforms a 5 out of 10.” So in the hands of a purposeful leader, they will get things done. In the hands of a process person who will respond when Fish and Wildlife says, “I think we need to study a little more what the effect of having the pylons in that marsh are,” and then six months go by… In the hands of somebody who isn’t willing to make those kinds of trade-offs on a timely basis, it would do nothing. Because what it doesn’t do, it doesn’t create clear lines of authority to make ultimate decisions.
When agencies disagree, which is practically every single time, someone needs to make a decision about what the trade-offs are. Do we care about the marshland or do we care about getting rid of the coal-burning power plant? It’s choices like that that need to be made, and someone has to make those choices. And the bill does not clarify who that person is. So, again, in the hands of a leader, it can work. In the hands of a process person, it can get stalled.
Geoff Kabaservice: The Niskanen Center put up a paper on our blog a few months ago by Alon Levy of NYU called “So You Want to Do an Infrastructure Package.” And he pointed out what you have emphasized for a long time, which is that other developed countries — like even Italy and France, which are generally not known for their efficient government — construct infrastructure that’s better at a much lower cost, for reasons that usually boil down to state capacity. And by state capacity, I mean a government’s ability to adopt a policy and have it actually enacted because the people who are doing it have competence and credibility and political will. So what’s missing? What would you recommend should go into…?
Philip K. Howard: So government procurement is one of the areas that I worked on with the Al Gore Reinventing Government group. A wonderful expert there, Steven Kelman, was working underneath Elaine Kamarck doing that. So I thought a lot about this, and I have friends who run… I have a friend, for example, who runs New York Metropolitan Transit Authority, so he and I talk about these issues.
Government basically — leaving aside the permitting, which can waste half the money — the procurement practices will waste another half of the money. So now you’re getting down to about one-quarter efficiency. And so that’s why the Second Avenue Subway in New York cost two and a half billion dollars per mile, and a similar subway built about the same time in Paris, France (of all places) cost 20% as much, $500 million a mile. So what you have are all these rigidities that have been built into the procurement rules that, for example — and this bill does a little bit to help in this regard — that make it hard to do design-build contracts, that make it hard to give one person the job and then negotiate with them, the way it works in the private sector. Everything is laid out in advance and then nothing ever works out because it never works out that way. So then you end up paying twice as much in procurement.
Then you have these labor rules… In New York state, for example, in the big states, the union contracts basically require featherbedding at a level that should be a scandal — but there’s just so much noise that it’s not a scandal. But one of the reasons the Second Avenue Subway costs so much is it had two and three times as many people working on the machine — the same machine as in France — as were needed, because laws required that. And these are people making a hundred bucks an hour doing nothing. Indeed, in one tunnel going into Grand Central, they discovered there were hundreds of people on the payrolls who had been paid for years who had never shown up. And you wonder why it costs so much.
So what I’ve recommended, which I think is absolutely essential — I think we need new institutions in all these areas — is a national infrastructure board, which should be nonpartisan, appointed the way base-closing commissions are appointed with the two members from the majority and two from the minority and all that kind of stuff. And give it presumptive authority to recommend — not set, but recommend — priorities for where the money goes, because you don’t want to get “bridges to nowhere” all over the place. That’s number one.
And then, two, to really oversee and have power over procurement guidelines so that states cannot continue to throw the money away in these featherbedding agreements. They’re not going to get the money if they’re going to throw away half of it because of these crazy work rules. And not so much for roads, because roads have become kind of commercialized and most states probably do that in not a completely inefficient way. But for other kinds of infrastructure, we might as well be burning half the money.
Geoff Kabaservice: You had mentioned in your podcast with No Labels that there are also examples to look to internationally, like Australia, which has a continually updated list of the most critical infrastructure needs. We don’t have anything like that, do we?
Philip K. Howard: No, we don’t have that. There has been no focus on how things work. Niskanen Center is starting to look at it and a few people, but other countries… Most of success in life is how you do things, it’s not what you want to do. Everybody wants to be a success, so how are you going to get there? And so how do we make government successful? Well, in Australia and New Zealand and Germany they actually ask those questions. And of course the answer to the “how” is you create institutions that have a presumptive responsibility.
In the case of Australia, they have a national infrastructure board that receives applications for projects, and they maintain an ongoing list of what they think the priorities are. They don’t have the power — the parliament still retains the power to decide how the money is spent — but they have moral authority. And so now it has something that says, “No, it’s a waste to build a bridge to nowhere. And it’s absolutely essential that you build a $30 billion Gateway Tunnel into Manhattan because the entire Northeast economy (which is half the economy of the country) needs it.” So it’s really important to engage institutions and citizens and officials in a way that shines the spotlight on people who have the job of doing what’s right.
Geoff Kabaservice: You’d referred to the Ripon Forum article that you wrote on “Democracy vs. Bureaucracy,” and you refer there and elsewhere to the real difficulty in getting anything done given the rigidities have been built into the system by public sector unions. So what do you think can be done about this rigidity and these unions?
Philip K. Howard: I think we first have to discuss — again, as we’re doing this discussion, and as the Niskanen Center has been doing — we do have to make it a point of talking about how things work. How is it that things can work sensibly? That’s the right question. How do we make the school work? How do we create affordable health care? All these are the really important questions domestically. And so one thing we need to do is we need to just clean out the jungle — not to deregulate, not to do what the Republicans have said for thirty years — but to make them work. To create simplified structures that allow people to get the job done, to roll up their sleeves.
But that can’t work unless people can be managed and are accountable. You can’t run government if you can’t make decisions about where to allocate personnel and to decide who’s doing a good job and who isn’t, which teacher’s doing a good job, which cops are so wired that they shouldn’t be on the beat with a loaded gun. These are the core management decisions that people in government have to be able to make. They can no longer make those decisions.
Well, the ultimate effect of that is that democracy doesn’t work. Because we elect people who say they are going to make America great again, or have change that we can believe in, or whatever. But they can’t, because they have no authority to run it differently. They have no authority to run the schools any differently, or the police any differently, or the health care system differently. They have no authority to do those things. So the public unions… Collective bargaining didn’t exist in the public sector until the 1960s. No one debated it. It just got swept in. They said, “Well, this is just a question of honoring our rights.” Well, no, it’s not a question of honoring your rights. It’s a question of having them getting priority over the public interest. So you can no longer fire a bad teacher. Two out of 300,000 teachers in California get fired every year for performance. They have one of the worst public school systems in the country. Derek Chauvin couldn’t even be reassigned, much less fired.
People say, “Well, it’s impossible to break the public unions. They’re too powerful.” That’s true. That’s absolutely correct. 22 million people work for the public sector in this country. The unions are by far the largest interest group. They now effectively control government in their own interests. They block charter schools. They get more jails built in California because it helps the Correctional Officers Union. It’s just crazy what we’ve done. And they can’t be beaten politically because of how democracy works. They’re too powerful, right?
So what I suggest in this article — and have written about, and am organizing and I’m going to lead — is an initiative that’s a constitutional challenge to collective bargaining in the public sector, on the grounds that it has preempted democracy. And it is unconstitutional, even in state and local government, under the federal Constitution under a provision that’s really never been used, certainly not in this context, called the Guarantee Clause. Article IV, Section 4 of the Constitution says the federal government shall guarantee a republican form of government in the states. And what the history books say that means… That means you couldn’t create, for example, an aristocracy where everybody and his son runs the state; that ultimately the voters have to maintain the authority over who is running the state and the cities. Well, guess what? The voters have not retained that authority. They can’t elect somebody who can get rid of a bad cop. So I think while the argument is novel, the argument is also completely correct. Democracy no longer works.
The fact that it’s politically impossible is also correct. Is it quixotic? It’s necessary, it’s not quixotic. The system is failing because we don’t have the… Eventually, even America the Rich will run out of resources when it pays two, three, four times — or in the case of a Second Avenue Subway, five times — as much for a tunnel as is required. And America won’t survive if the schools continue to be as lousy as they are, and people aren’t even allowed to go to alternative schools because the teachers’ unions are preventing them from being created. It’s a scandal.
Geoff Kabaservice: I don’t want to say that I despair here. But on the one hand, it seems to me Democrats will never oppose the public sector unions. And on the other hand, it seems to me that Republicans have no commitment at all to actual public service professionalism. And, you know, Trump showed it was possible, for example, to follow one of your recommendations at the end of Try Common Sense, which is to relocate agencies out of Washington. But really, that was just to punish those agencies, and ultimately to lead to the resignation or reassignment of most of their employees. So is there some middle way to get this done?
Philip K. Howard: Right. So let’s talk about this. I’ve been talking to Mitch Daniels and some other friends of mine about this over the years. So the Democrats will certainly never lead anything that opposes public unions or indeed other interest groups. That doesn’t mean they don’t agree with me. It just means, politically, they can’t touch it with a 10-foot pole. I understand that. I’m talking to some Democratic governors, and they wouldn’t touch it with a 10-foot pole but they would love me to win so they can run their states. And you’re right, what I’ll call the mean side of the Republican Party doesn’t want to be constructive. They don’t want a good public service. They don’t want a Volcker vision of an empowered, responsible, exciting public service. I agree with that. They don’t like government, so they just want to shoot at it.
So where does that leave us? That leaves us with some significant proportion of the population — I bet it’s more than half the people in this country — who just want things to work, who don’t want to waste money, who want their kids to go to get education. They want healthcare that’s affordable to whoever’s paying for it. They want bad cops off the beat. They want to deal with the legitimate objections of minorities who haven’t been able to succeed. They want things to work. So who is representing them besides the Niskanen Center? And the answer is, not many people, right? So can you create a third party? Probably not in this system. But as someone just wrote in the American Purpose, in a really interesting essay, you can create a new party — not a third party, but a new party — and take over a party.
And I think the party that needs to get taken over are the Republicans. Because I think they are marginal and mean, and not public-spirited, and have lost sight of the values on which this country was grounded. And I think that if you find modern incarnations of Tom Kean and people like that, the moderate Howard Baker (who was a mentor of mine), and you have a vision for how things can work again — which by the way is radical. This is not namby-pamby. This is not a “Let’s be nice to the other side” vision. This is a “Let’s clean out every bureaucracy so that people can focus on goals and have arguments again instead of tromping through the endless red tape. Let’s attack the public unions and get rid of collective bargaining. Let’s control lawsuits so any angry person can’t bring anything to a stop by bringing a lawsuit.”
We need to have limits on that. We wouldn’t tolerate a prosecutor seeking the death penalty for a misdemeanor, right? That would be an abuse of power. So why do we tolerate some jerk in Washington suing his dry cleaners for $45 million for a lost pair of pants?
Geoff Kabaservice: I remember that.
Philip K. Howard: It’s the same thing. It’s same thing with government. You can’t tolerate any parent throwing a monkey wrench into a school because they don’t like the services your school is getting. That’s not a lawsuit question. That ultimately should be a political question: what the priorities of the school are. So you can have a really radical platform that’s about human empowerment and making government work again that includes empowering public officials and holding them accountable — not empowering them to do whatever they want, but empowering them to get the job done and to get fired if they’re jerks. That’s really an important part of it.
And you’d asked this question earlier… The question everybody asks is, “But that requires trusting people and we don’t trust people.” Well, let me just tell you, I don’t trust anybody. I’m an incredibly distrustful person. I assume the worst of myself, I assume the worst of everybody else. I’m incredibly distrustful. I don’t trust any individual. But I do trust a framework in which other people are looking at each other and have the power to undo questions. So what’s required in a simplified system is not trust of people — officials, or anyone else. It’s trust of a framework where the goal is to have nursing homes that are safe and effective and to respect the dignity of the residents.
Those are the principles in Australia. It’s that complicated. That’s what it says. They have 31 principles. It’s that simple. It doesn’t require them to trust the nursing home owner, because the official still can come in and say, “Hey, wait a minute. This place is a mess and I’m going to close it down if you don’t clean it up.” And if he is a jerk, then the nursing home owner can go over his head to the administrator or to a court and say, “He just has it out for me because I once criticized him,” or something. Everybody’s subject to everybody else.
In a free society, the molecules are bouncing together all the time. And we ought to be able to associate and make our own judgments and make our judgements about each other and other people. And we’ve created a system where nobody’s bouncing. Everybody’s just demanding, using law as the weapon. And it’s this constant clash of swords in which we can’t get anywhere.
Geoff Kabaservice: I do wonder, in an alternate world, what might’ve happened if Mitch Daniels had made a serious run at the presidency, whether he might’ve come closer to that vision you’re talking about. But there are examples we can point to of at least attempts to work around some of the immobility in the system you’re talking about. There was the Volcker Commissions on civil service that you mentioned in 1989, and again in 2003. There was the Reinventing Government Initiative. And in New York, there’s also the 311 system.
Philip K. Howard: Sure. There are improvements. But the Volcker Commission, just like the Partnership for Public Service, all of whom I admire enormously — they blinked when it came to the public unions. They wouldn’t take it on. You ultimately can’t create a system of empowerment and dignity if you don’t also have a system of accountability. That doesn’t mean you can do whatever you want. Even private companies will have workers’ councils that will review firing decisions. That’s fine. But it’s not a legal hearing based on objective proof. It’s a bunch of workers saying, “Was this person really doing a bad job or not?” And then they make a judgment. That’s it. It’s incredibly efficient.
By the way, Reinventing Government also blinked when it came to civil service. They just wouldn’t take it on. So they made a lot of reforms, some of which were quite good and innovative. But they didn’t ultimately have this philosophical drive to revive human agency at the point of implementation. Ultimately, this is all about giving the people with responsibility the authority to succeed or fail.
Geoff Kabaservice: Do you have any interest in the ombudsman concept, or does that seem to be settling for too little within a basically broken system?
Philip K. Howard: Well, I think it’s part of a working system. I think it’s really good to have it. For example, other countries have one-stop shops for permitting. And effectively, it’s kind of like an ombudsman. These places don’t have the authority to give you the permit, but they help somebody navigate between the environmental agency and the whatever agency, right? So I think as part of a simplified framework, having an ombudsman really can be effective. But I remember when we were trying to do some reforms on permitting of restaurants in New York City, when Bloomberg was mayor. And there were eleven or twelve different agencies involved, and the Fire Department just wouldn’t play ball. They just didn’t want to give up their prerogatives. So an ombudsman doesn’t have the authority to deal with it. Even the mayor of the city of New York didn’t have the authority.
So ultimately, you need clear lines of authority. You need to have lots of checks and balances, and help like ombudsman. But I think we have to arrive at a point where we understand that this system of government we created is a version of central planning — but instead of having planners in charge, it has the lowest common denominator having the power to paralyze everything, whether it’s discipline in the classroom or whatever, or somebody stopping an infrastructure project. And I think Americans, sooner or later, if this narrative can be created, will be fed up enough perhaps to support a movement to make things work again. And that movement, I think, could take over what is truly a vestigial party, which is the Republican Party. It really doesn’t stand for anything. It just stands for opposing what the Democrats stand for. And I don’t think that’s good enough. They have to stand for something positive. And America needs it. We need a healthy two-party system, and we don’t have that.
Geoff Kabaservice: Philip K. Howard, thank you so much for the consideration you’ve given to these critical public problems. And thanks so much for joining me here today.
Philip K. Howard: It’s great being with you, Geoffrey. Thank you. And thanks for all the work of the Niskanen Center.
Geoff Kabaservice: And thank you all for listening to The Vital Center Podcast. Please subscribe and rate us on your preferred podcasting platform. If you have any questions, comments, or other responses, please include them along with your rating or send us an email at firstname.lastname@example.org. Thanks as always to our technical director, Kristie Eshelman, our sound engineer, Ray Ingegneri, and the Niskanen Center in Washington, DC.