Philip K. Howard is a New York-based lawyer and civic reformer, who across his public career has tilted against the accumulating layers of procedural law and bureaucratic rule that have made it increasingly difficult for Americans to exercise individual initiative, judgment, and accountability. Since the 1995 publication of his bestselling first book, The Death of Common Sense, he has pointed out that the urge to make decision-makers accountable by subjecting them to highly specified rules has paradoxically produced a system that is both unaccountable and paralyzed. In his most recent book, Saving Can-Do: How to Revive the Spirit of America, Howard argues that legal micromanagement has sapped the sources of American dynamism and effective government, fueling populist resentments.
In this podcast discussion, Howard offers qualified approval of the Abundance movement that he in some ways anticipated by decades. But he insists that the pruning of excessive rules and procedures must also be accompanied by restoring a role for human judgement: “It’s not simply having less to comply with. It’s actually re-empowering everybody — the teacher in the classroom, the principal, the head of the school, whoever it happens to be — empowering them to do what’s right.”
By the same token, he criticizes Elon Musk’s DOGE initiative for focusing on cutting the things government does but squandering the opportunity to change how the government does things: “There was not even a pretense that they had an idea about how things would work better the day after DOGE. It was just, ‘Look at how much we’ve cut,’ and then they wildly exaggerated how much they’d cut. Of course, it was all counterproductive…”
Howard resists political categorization and his Common Good organization has worked with Democratic and Republican administrations alike, but his tradition of civic liberalism is increasingly homeless in contemporary politics. He acknowledges that some rules and regulations are essential, but he hopes for a government that can restore space for human judgement in a way that can restore both American dynamism and public trust in government efficacy.
Transcript
Philip Howard: So we’ve created a kind of weird culture where people feel disempowered to act on their values of right and wrong, and that’s not a good society. It’s not the America that grew up and created all that we created.
Geoffrey Kabaservice: Hello! I’m Geoff Kabaservice from 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. And I’m honored to be joined today by Philip K. Howard. He has served as senior counsel with the Covington & Burling law firm in New York, and is the founder of Common Good, which is a nonpartisan organization advocating for replacing red tape with human responsibility. And he is the author of numerous books that have impacted the national conversation over law, bureaucracy, and effective government. These books begin with the 1995 bestseller, The Death of Common Sense, and include most recently Saving Can-Do: How to Revive the Spirit of America, published by Rodin Press. Welcome, Philip!
Philip Howard: Nice to be with you, Geoff.
Geoffrey Kabaservice: It’s nice to be with you too — or really, I have to say it’s nice to be with you again, because you previously had joined me on one of the early episodes of this podcast back in the autumn of 2021. That actually was a moment when many people were claiming that effective government had returned to the land. Joe Biden’s administration had succeeded in passing some big bills with bipartisan support. Among them, of course, was the Bipartisan Infrastructure and Jobs Act, which incorporated several recommendations proposed by your Common Good organization. But it then transpired that the Biden administration could succeed brilliantly in allocating money toward infrastructure projects, but then it was unable to build them, largely because of the legal and procedural constraints that you had been analyzing and writing about since the mid 1990s. And this inability of the Biden-Harris administration to deliver on their promises was a large part of why Donald Trump won reelection in 2024.
And in the past year, we saw the Department of Government Efficiency (or DOGE) initiative under Elon Musk, with its very mixed record of bureaucratic reform. And, more positively, we also witnessed the flourishing of the Abundance movement, which in some ways traces back to you and a handful of other thinkers who already were warning of growing failures of state capacity thirty years ago. So I wanted to get your perspective on these and other developments that have transpired since our last conversation. But first, tell me about your most recent book, Saving Can-Do. What is its argument in broad outline, and what made you want to write it?
Philip Howard: Well, I really only have one idea! — I’ve parlayed it into eight books so far — which is that only humans make things happen. I have an appointment at Columbia and I’d hosted a forum there about a year ago, and had all these leading experts in. And I realized, in listening to them, that the idea that somebody — an official — could do something just by using their judgment was somehow not really within the realm of possibility. The people assumed that public choices had to be demonstrated to be in compliance with something: following the rules, following the procedures. Everybody’s focusing on compliance.
Well, governing is not really about compliance. Compliance is a framework, but in my view, governing is about law defining of a realm of authority, and having checks and balances, but giving officials the job of using their judgment and making… So for example, do the benefits of the transmission line outweigh the harm of building it through a pristine forest? That’s not a legal question. That’s a question that ought to be transparent, we ought to have an environmental review, but ultimately that’s a judgment call involving trade-offs by whoever’s in charge. It’s not something you can prove with ten years of process.
So in Saving Can-Do, I try to… It’s really three essays, but really starting in the first essay, I talk about how the spirit of America is all about people inventing themselves and owning their choices, being judged by other people. It’s all about subjectivity, it’s all about judgment. And judgment’s like a black box. It’s your amalgam of experience and training and instincts and biases, and all kinds of positive and negative things. I’ve tried to explain in that opening essay that you can’t systematize what works. You can judge it and you can second-guess it, but you can’t prove it and you can’t objectify it. And then I go on in the next two essays — one on schools and one on infrastructure — to talk about how that’s applied.
Geoffrey Kabaservice: You begin the book by drawing a rather startling comparison between present-day America and Russia circa 1917. You write that “All societies periodically undergo a major shift in the social order. These changes are often triggered by the failure of the ruling elite to deal with outside pressures,” as in Russia’s fall to the Bolsheviks in 1917. So let me ask: What are the signs of national distress that make you feel like America might be at a 1917 moment? And what are some of the elite failures that may have led us to this point?
Philip Howard: Well, first of all, the election of Donald Trump. I mean, Donald Trump didn’t fool people into thinking he was a good person. He came in and promised to make the trains run on time, and to talk down at all these elites who’d been telling people they have to use the right pronoun or all the woke stuff. He has a kind of feral genius for identifying what people hate, and he kept pushing that button all the time. And the truth is that government wasn’t delivering. It wasn’t halting immigration. It wasn’t delivering on infrastructure. It wasn’t doing really any of the things it said it was doing, but it was doing a lot of overbearing stuff that people didn’t like.
So it was an open season — and not as bad as Russia in 1917. I mean, the Tsar had just lost disastrously in World War I with lots of people killed. The serfs were starving, the aristocrats were unhappy, everybody was unhappy. And every effort to try to reform it resulted in what Iran’s like today, and murdering the poor people marching to a petition the Tsar in 1905 and such. So it was open season for a new system. And it was not at all clear that the Bolsheviks were going to win. If somebody had handicapped it back then, they would have probably picked some other group. But they did, and look what happened.
So, in a less violent way in our country, we’ve had failures of the system result in major governing changes, really every thirty or forty years. The last was the 1960s: the civil rights revolution, the environmental movement and such. These were failures of the governing system to deal with real problems. The New Deal: we had a Depression, and government had no idea how to save starving people. So FDR invented the social safety net; that was a new idea. In the Progressive era, reformers had been agitating for decades about the inhumanity of child labor being mashed in factories and such. And then finally, we got literally a change in governing philosophy, which was to abandon laissez-faire and to legitimize the idea of regulatory oversight. That was a big shift.
And I think we’re at that moment now. One of the things that we have to abandon, I think, is the idea of legal micromanagement. That’s a philosophy. It’s a philosophy of 1,000-page rulebooks and years-long proceedings, and anybody has an “individual right” to sue anybody for any employment decision that they don’t like.
So we have to have a debate, a public debate, and then change this framework to one — well, one that works. And two, I think one that empowers people so they don’t feel bitter and they don’t vote for Donald Trump. They feel like they own their own choices and they own their own communities.
Geoffrey Kabaservice: You, as we established in our previous discussion, were a longtime Democrat who was more recently registered as an Independent. But you’ve been an advocate for effective government, and sometimes that has led you to say good things about Republican initiatives as well as Democratic initiatives. But overall, you come across in this book as quite critical of both parties. You say that neither party has a vision for better government. Democrats at this moment seemingly stand for little else other than opposing Trump and don’t seem to be offering much more than a return to a dysfunctional status quo. And Trump largely stands for the destruction of the old order without any vision, really, of how government can work better.
Philip Howard: I couldn’t have said it better. I mean, first of all, it’s a good business model for both of them. Trump can make fun of identity politics and wokeness and government failure and whatever, and so everybody who hates that will give Trump money. And then Democrats can simply say, “How did we get Donald Trump? How did we get this person who’s destroying the world order, grifting off billions of dollars for his family, all this stuff? You’ve got to give us money.” So everybody who opposes Trump has got to give it to the Democrats. And so both parties, in that sense, they’re doing fine.
The problem is, as my friend the journalist John Ellis says, most of the country is dry kindling for a new vision. Most Americans see what’s going on. They don’t like it. They don’t want to be part of either a failed system that the Democrats are preserving or this new world order of “might makes right, and when you have power you get a lot of money.” So I think there’s clearly an opening for a new vision, but it needs to get turned into a thing that people can understand and begin to subscribe to.
Geoffrey Kabaservice: I understand that you’re being provocative with your 1917 analogy, but you also do point out that two-thirds of Americans say that drastic change is needed now. Record numbers of Americans say the country is on the wrong track. And we’re also witnessing this historically anomalous pattern where the ruling party is seeing its approval ratings decline, but the opposing party — in this case, the Democrats — is not seeing its approval writings rise. Americans are upset with both parties. They don’t like either of them. They’ve lost trust in leaders of any description, and they’ve also lost trust and faith in American institutions. It is an unstable moment, I would say.
Philip Howard: Yes, it is unstable. And we need the Niskanen Party. It’ll be the new 501(c)(4) being created as we speak. Change is in the air. David Brooks recently in his farewell column talked about the decline in the culture and the morality, and I’ve written an essay responding to it. And I think David is right, but he doesn’t go into why we’ve had what he calls four decades of hyper-individualism, and why we no longer trust our neighbors or other people, and why the distrust has infected the society and therefore led people to retreat into defensive pockets — “I’m against them, I’m against them” — leaving most of us in the middle with no home.
I trace at least a large part of the problem that David Brooks describes — of distrust and hyper-individualism — to the change in governing philosophy after the 1960s, which included a kind of principle of: “Who are you to judge? Don’t be judgmental. If you think you’re treated unfairly, you have a right to sue. Subjectivity is the evil to be avoided. Prove that the decision that you made is the right decision.” I mean, even teachers and professors have students come to them and say, “What do you mean I got a C? How do you prove that this paper is no good?” Well, of course the person’s relying on their expert judgment, right? I mean, they’re a professor after all. But expert judgment is subjective. It’s just judgment. You can’t prove it, right?
And so, all of a sudden we have this world where anything… You’ll see it in culture: “Who are you to say that Rembrandt is better than some contemporary artist? That’s just subjective.” Well, of course it is, but it also happens with the test of time, and you can look at a Rembrandt and gosh, you really feel you know that person. So we’ve created a kind of weird culture where people feel disempowered to act on their values of right and wrong, and that’s not a good society. It’s not the America that grew up and created all that we created.
It hasn’t gone completely. You still see it in any good firm or any good think tank. You still see it in communities of shared values, particularly religious or ethnic values like the Mormons in Utah or the Hasidic Jews in Brooklyn. But we all go to video training in our firms, and the what’s the message of the video training? “Don’t be yourself. Don’t be spontaneous. You might make somebody feel unsafe. They might not get the joke. It might offend.” And so there’s no authenticity, there’s a lack of candor, everybody knows it. And then guess what? You get a society riddled with distrust.
Geoffrey Kabaservice: The only argument I would make to your analysis is that the idea of a teacher giving a student a C strikes me as somewhat fanciful at this point. Students are going ballistic over A-minus grades.
Philip Howard: That may be true. I mean, Harvard just announced they’re going to give out fewer A’s, but that’s a fairly low bar when you hit whatever it is, 80% of the grades are A’s.
Geoffrey Kabaservice: 90% and up at a lot of universities now too. You talk about America having lost a kind of can-do culture. First of all, what do you have in mind by that? What did it consist of, this can-do culture, and where did it come from?
Philip Howard: Well, you can’t trace any of these things in a straight line to one thing, and there are lots of people who have written about the frontier ethic and all that kind of stuff. But Americans came over here, and in a wilderness, they had to adapt. There were no cultural traditions to fall back on, so they had to create their own cultural traditions. They had to deal with the frontier in all its majesty and risk. And people learned how to invent everything for themselves — I mean everything.
In the old world, you were the son of a carpenter, you became a carpenter. You were the aristocrat, you were expected to be waited on your whole life. In this world, you had to do it for yourself. And there are lots of wonderful compendiums of writings of newcomers to this country, starting in the 17th century but going into the 21st century, of what they say about the opportunity that came to them and the sense of ownership — notwithstanding all the discrimination against the Irish and the Italians and the Jews and others, and not to mention the segregation of African-Americans.
And you look at the stories of American accomplishment… I mean, Thomas Edison had virtually no formal education, and he tinkered his way to figuring out how to record sound, electric light bulbs, electricity… I mean, it’s just extraordinary. And you hear him talk, he is not a person of great erudition: “Hell, we ain’t got no rules around here. We’re trying to make something work or be like that.” And the Wright brothers… They’re kind of totems in our history, the first manned flight and all that. The Wright brothers were competing to create manned flight at a time when the greatest physicists in the world were trying to do the same thing, and they were bicycle mechanics. And they would put airfoils on the handlebars of a bicycle and ride around Dayton, looking at how the air flowed under the airfoil. Literally, that’s how it worked. These guys with, again, little education who were bicycle mechanics beat all the greats, because there was this sense of making it up yourself.
Geoffrey Kabaservice: You’re reminding me of an essay that Philip Zelikow, the University of Virginia historian, wrote a few years ago on America’s largely vanished tradition of policy competence. And he agreed with historians like Paul Kennedy, in his classic work Engineers of Victory, that this tradition of policy competence was one of the critical factors that allowed us to win World War II. And Zelikow traced one of the sources of this policy competence back to the strong and decentralized problem-solving culture of American business, from the Wright brothers at the turn of the century on into the ’20s, ’30s, and ’40s. He wrote that “In that era, the paradigmatic discipline of American business and industry was engineering, and the paradigmatic figure was that of the ingenious tinkerer who deeply understood both design and production and knew his way around the shop floor.” I do think that’s a very strong influence in American life, or was for many decades.
Philip Howard: Yes, and you see it not just in inventions like the airplane, but you see it in various kinds of social services and you see it in religious movements. You see it in all kinds of things where people are inventing what they think is better. And by the way, you also see lots of failure. We always remember the successes; we don’t remember that the floor of history is littered with the failures, the people who had their dreams and didn’t get them. But it was this sense of ownership. I think what’s happened is we’ve created a culture of compliance. If you’re a CEO of a big company now — this is not true with every company, but many companies — it’s basically a compliance job: “Don’t run afoul of the regulators.” That’s why so many lawyers become CEOs.
Geoffrey Kabaservice: Dan Wang has a harsh but I think fair verdict in his recent book, Breakneck, which is comparing the present-day culture of the United States to China. And he believes that America used to have an engineering culture dedicated this kind of problem-solving that you’re describing, but then it became a litigious culture dominated by lawyers, and lawyers were the people who ended up in government and Congress. Whereas China very much is an engineering state where the people in top positions have strong backgrounds in engineering disciplines.
Philip Howard: Right. I’ve done some stuff with Dan, and I think the book is unbelievably fantastic. The chapter on the one-child policy in China, I could barely finish, it was so painful to read. I mean, it was just horrific what the totalitarian state did to women who were expecting a second child with enforced sterilizations and all that.
But I do differ a little bit in the use of the word “engineering.” I think if engineering means, “Let’s make things work and just focus on what makes things work,” then fine. But engineering as a discipline is kind of objective: “These are the stress loads, this is how you build a bridge.” I think that what America had was certainly focused on making things work, and engineering is important if it’s a physical thing like making an airplane fly or a bridge continue to stand. But I think what America had was not so much engineering as it had a creativity. If you read the accounts of great scientists about how they came up with their ideas — and some of this is written about in Michael Polanyi’s wonderful book, Personal Knowledge, from 1975 — they don’t figure it out, they intuit it. And the way the brain works is, you’re out chopping wood or you’re on a hike or you’re sleeping or whatever, and people imagine something: “I wonder if it could work that way, or if this would work better.”
Engineering is about making sure all the pieces fit together. Most innovation — at least real scientific innovation, really even business innovation — is inspiration. It’s people who feel that they’re free to invent something new. I mean, Steve Jobs, nothing told him to make these beautiful designs he was creating with the original Mac. That was his inspiration. He wanted these things to be beautiful, and so he made them beautiful.
Geoffrey Kabaservice: We’re now getting into some of the territory of dynamism, which our mutual friend Ned Phelps has described so well. And I suppose I should mention that America has been mercifully free of the kind of social engineering that has characterized Chinese communism.
Philip Howard: Yes, absolutely, although some of Trump’s suing everybody who disagrees with him, and all that kind of stuff, is a version of social engineering: “You can’t say anything bad about me or you get in trouble.” But you’re right, we’re not close to what China has done.
But we have lost this sense, again, even the Abundance people — we should talk about this — have a sense that we need to reform the system. We need to make the system work better, like you’ve got to prune the regulatory jungle so that it doesn’t take as long to get the infrastructure project approved or built or whatever. And I think that’s inaccurate. What’s wrong is not just that we have too much procedure, too many rules; what’s wrong is we don’t have the idea that getting that thing done will always involve human judgment. And so the role of law is to provide a framework that defines and a way of second-guessing or protection balance of that human judgment. But it’s not simply having less to comply with. It’s actually re-empowering everybody — the teacher in the classroom, the principal, the head of the school, whoever it happens to be — empowering them to do what’s right.
I’m working on a paper now on manageability, the manageability of public sectors. Manageability is not about having a good system. I mean, having a decent system, fine, but good management is a continuous process. You come to work, you’re with your other people, you’re talking about, “Oh my gosh, we need to do this differently. There’s an unintended consequence thing happening here.” So management is like a… And all the iterative improvements that we see from the Wright brothers to a 747, for God’s sake, in six decades… I mean, think of that. Think of the iterative changes to go from wood and cloth to a 747. That’s continuous, it’s a continuous thing.
And there’s this… I think I’m going to write a book review of this. There was a book written in 1920 that’s not even in print, but you can get it reprinted through the modern Internet, by a management pioneer called Mary Parker Follett. She was born in 1868, died in 1933. Now, she was writing this stuff before women even had the right to vote, right? And she’s an organizational genius whom Peter Drucker and all these other people quote because she was so smart. And one of the things that she said about organizations is that no organization will work unless it leaves authority for people on the ground to, as she calls it, “obey the law of the situation.”
It’s just a great phrase, because life is different every time, every sequence. It’s like a kaleidoscope, with very few repeating patterns. There are some patterns, but you’ve got to let people adapt to the new thing in front of them: “Oh, there’s an overhanging tree limb, so we can’t put the pole there.” Whatever it happens to be. And this idea of giving people ownership and then adapting is just not currently in our psyche of how to govern or really even how to live.
Geoffrey Kabaservice: So when we talk about this big cultural change, which led from the way things used to be done in America’s can-do culture to today, you pinpoint the 1960s (or the period really from the late 1960s into the 1970s) as the turning point. And many other people who have studied issues of Abundance and state capacity have done the same. Let me personalize this question a bit because you were around when these events were happening.
Philip Howard: It’s my fault!
Geoffrey Kabaservice: Yes, maybe it’s your fault! As we had discussed in our previous podcast, you had grown up in small-town eastern Kentucky. You won a scholarship to the Taft School in Connecticut, and then you attended Yale with the Class of 1970. When you entered Yale as a freshman in 1966, my understanding is that it still felt in many ways like the old Yale, which was stereotypically a shrine of the old WASP aristocracy, all male, very New England, very WASP-y, fairly conservative. When you left, Yale had become this international and meritocratic institution. It had embarked on the beginnings of coeducation and racial diversity. And it also embarked on what would prove to be a decades-long move to the political left and what you quote the historian Eric Foner as calling “a massive redefinition of freedom as a rejection of all authority.” Is that an accurate summary of what you experienced? And if so, how do you feel about what was gained and lost in that transition?
Philip Howard: Well, first of all, it was really fun!
Geoffrey Kabaservice: All right, well, that’s good.
Philip Howard: Forget about all the baleful consequences to the society, it was really fun. I mean, there was all so much going on… It was wild and I had my feet in all camps. I was singing in the Whiffenpoofs, which couldn’t have been more traditional, and I had a gig working as a photographer, photographing the Black Panthers and such every day. So it was wild, it was fun.
And remember, back then you would say, “Never trust anyone over thirty!” And this was a decade where we had finally acknowledged racism and segregation. We finally acknowledged the horror of letting people pour chemicals into rivers and the rivers catching on fire or whatever. It was when the horrors of locking up disabled children in horrible places like Willowbrook, Staten Island, when Ralph Nader talked about how cars were being built that were almost deliberately unsafe, where we had LBJ’s people lying about Vietnam and such — and then topped off by Watergate, just a year or two after I left Yale.
You have this almost unavoidable confluence of failures of the institutions, and failures of authority in every way. So it’s not at all surprising that the legal geniuses at the time wanted to come up with a theory that the only way to stop this authority is just to get rid of authority: “Governing will become a software program. We’ll just have 1,000-page rule books and tell people exactly what hammer to buy. And we’ll have processes where you have to prove by objective proof that the transmission line is worth building it through the forest. And we’ll let anybody who doesn’t like anything have the individual right to sue over it.” And who are they suing? They’re suing people with authority.
Well, the first two pieces of that… The first piece, the detailed rules, it’s just central planning. It doesn’t work. Lots of studies have found that it’s just counterproductive. Worker safety wasn’t improved, it was hurt. Figuratively, people with their noses in the rule books tripped over the buzz saw. That sort of thing. The objective proof ended up just being gamed by whoever wanted to make money or get something out of it — because none of these judgments are objective. You can’t prove who’s a good teacher, who’s not. You can’t prove the transmission line’s worth it. You can’t prove any of that. It’s a judgment. You can second-guess a judgment, you don’t have to trust people. Judgment’s fallible, right? — Danny Kahneman writes about this — but you can’t prove it. And so that was wrong.
But the individual rights thing, that was really pernicious because the rights that the Framers gave us were universal: the right against state coercion, for example. Everybody, no matter how important, has a right not to have the police conduct an unreasonable search and seizure of your home, or throw you into jail without due process. That’s the Bill of Rights, right? These new rights were not rights against state power. They were rights against the freedom of other people to make judgements about you. So it’s a right against the freedom of other people, particularly the people who have responsibility — the school principal, or whoever it happens to be. And then we wonder why nothing works.
So you have this kind of version of central planning. It’s like central planning by dead people. You have these rules written in, say, 1980 that say you’ve got to do something, and then whoever wrote the rules retires and dies. And here it is 2026, and if you don’t follow that rule, you get in all kinds of trouble. And the rule may not make any sense whatsoever.
And by the way, nobody’s gone back, by and large, and cleaned out this stuff. So we have the problem that all empires have, whether it’s Louis XVI or the Pharaohs or the Ottomans, it doesn’t matter who they are. They all have a legacy system, right? The things take on a life of their own, and soon they clog up and the sediment rises in the harbor and the resentment grows. And that led to 1917 in Russia, that same kind of process. But we have the additional problem that we haven’t cleaned this stuff out. Nobody’s figured out which of the 180 STEM training programs that the federal government has enacted, which of those do any good and make any sense or whatever. It’s just crazy, so we need a spring-cleaning.
But we also have a system that doesn’t let the people in charge take responsibility, because this idea was that you’re replacing human judgment, right? So we are at a point where we do need the Niskanen Party.
Geoffrey Kabaservice: Well, thank you, you’re very kind. As I think about the 1960s, I think a lot of changes that you were describing were necessary and productive, frankly…
Philip Howard: Sure.
Geoffrey Kabaservice: … in making America a dynamic society. But the basic insight of the era that certain procedures were outdated became its own kind of orthodoxy. And that’s I think what we need to break away from now.
Yuval Levin, in his review of your book in the Wall Street Journal, said your analysis “suggests that we have lost sight of the purpose of law, which is to set some outer boundaries around the risks we can impose on each other, and to define general principles of accountability, but not to substitute for judgment.” I think that’s accurate. And yet, here is actually where we had a somewhat philosophical disagreement in our last conversation about what used to be called the Legal Process School.
Philip Howard: Right.
Geoffrey Kabaservice: I was reminded of this because I was struck by an op-ed published in the New York Times on Christmas Eve 2025 by Yale Law professor John Fabian Witt entitled “The Idea that Once Held America Together Died in 2025.” And the idea that he had in mind was process, exemplified by this jurisprudential philosophy called the Legal Process School that was largely developed at Harvard by professors like Henry Hart and Albert Sacks in the 1950s. Witt wrote that “At the height of America’s 20th-century power, belief in process served as a guiding concept among the legal and political elites of both parties who sought to manage our most difficult national disagreements. … Process became the centerpiece of America’s powerful commitment to democracy during the struggle with totalitarian regimes in Nazi Germany and Soviet Russia. A generation of social scientists, lawyers and statesmen came to see the genius of American government not as any one set of values but rather as the collection of institutions, methods and techniques by which the United States articulated its principles and resolved its controversies.”
But by 2025, according to Witt, a kind of anti-proceduralism on both the left and the right overthrew this old unifying faith in process. On the right, he says, it manifested in the Trump Administration’s smashing of norms as laid out in the Project 2025 playbook, in DOGE, in the ICE raids, in Caribbean boat strikes, and the general attitude that outcomes are all that matters, winners win, losers follow the rules and lose. But he goes on to say that “liberals in exile bristled at process too. The autopsies of the 2024 election results bemoaned Biden-era failures to deliver infrastructure like electric vehicle charging stations, and affordable rural broadband. Thanks to a bestselling book by Ezra Klein and Derek Thompson, ‘abundance’ became a governing philosophy committed to clearing away decades of accumulated government processes. No longer would subway tunnels, highway miles, housing starts and high-speed rail hang in the balance of endless NIMBY delays. Even the libs said, ‘Build, baby, build.’” I wonder what you think of this general analysis.
Philip Howard: Let me cut through it. I think it’s half-right and manifestly half-wrong. The successes of the New Deal and of World War II were not successes of process. They were manifestly processes of people taking authority: Harry Hopkins… Those people were making decisions like crazy. I mean, that was not a process. The Administrative Procedure Act of 1946 was enacted because they didn’t have process in the 1930s and the 1940s. I write about that in Saving Can-Do. The role of process, in my judgment, is to provide, one, transparency so that people know who to hold accountable and all that kind of stuff. And two, to provide an opportunity for what maybe Danny Kahneman would call “System Two” thinking: bring in different points of view, bring in different interests to begin to have a discussion that can result in perhaps a better result.
I got my start when I was a lawyer in public policy. Well, I got my start working at Oak Ridge, but after I became a lawyer, I was the chair of the zoning board in the East Side of Manhattan. I was in my twenties. And there were these things that came in and the Zoning Committee of Manhattan, Community Board Six, didn’t have any authority. We didn’t have the power, but people had to come to us nonetheless if they wanted to get a zoning variance or whatever. And they had to present and then we had a chance to have the public speak and discuss it among ourselves, and then to make a recommendation to the agency that actually makes the decision. That’s how it worked. That was valuable, in my view. It was valuable. It got different points of view. We would sometimes change the way the project worked or whatever. That’s great. It’s a chance for discussion — but we’re talking about months. We’re not talking about years or decades, we’re talking about months.
And so the role of process, in my view, is for transparency and to provide input with the hope of improving decisions, because nobody ever agrees on almost anything — and everybody who’s been married knows this, right? You have to work it out. And this is what this management theorist called Mary Parker Follett says: The great thing about group decisions is they’re not about compromise. They’re about people understanding other points of view and other interests and coming up with a better solution, not just splitting the difference. And so that’s process.
But the process that we have today is not designed just for transparency and better decision. It’s designed basically to make the decision. You’ve got to prove it and then go to a court, and the court has a hard look and second-guesses your decision, which I don’t think is the role of court. The role of courts ought to be: “Did you transgress your authority?” The process should be, in the case of environmental review, for example, I think in most cases it should take months, it shouldn’t take years. The official ought to have the authority to decide what’s really important to review, not have thousands of pages.
I did this analysis of raising the roadway of the Bayonne Bridge. It was a brilliant idea by a career civil servant not to build a new tunnel or bridge, but to just raise the bridge within the existing 100-year old arch. It saved 80% of the budget — 80%! Instead of $5 billion, it’s going to be $1 billion. It had no environmental impact: the same right-of-way, same foundations, everything. It required them to have a 20,000-page environmental assessment over five years, followed by a lawsuit of inadequate environmental review to get approved as a project, which was a pro-environmental project that allowed more efficient ships into Newark Harbor, that had virtually no environmental impact. So that’s the process that the Abundance people are criticizing — completely correctly.
So the point is not to get rid of process. And, I’m sorry, let’s go to Donald Trump. What Donald Trump is doing is not just no process — he’s certainly doing no process — it’s lawless. He’s lawless, he’s just violating the law. And by the way, changing the law is not going to change Donald Trump, right? I mean, he ignores the law, he just blows people up. So will there be any accountability for that? But he isn’t the solution that certainly I or anybody else is going for. We’re not for no process, we’re not for no law. We’re just for making decisions with information that people have, using our judgment and being accountable for how we do.
And so I think… I know John Witt. John’s essay, which of course I read at the time, is a little overwrought and doesn’t give real credit to the flaw of the Legal Process Movement, which was that, in my view, that it’s a basis for decision-making. It’s not. It’s a foundation for people to make a decision, not a way to make a decision itself.
Geoffrey Kabaservice: I remember talking to one of the professors who had been part of that Legal Process movement about precisely this question of the lack of specificity in much of the law that we have, the way in which it actually requires human beings to make judgments. He pointed to, I think it’s the passage in the Eighth Amendment to the Constitution, which prohibits the federal government from inflicting “cruel and unusual punishments.”
Philip Howard: Right.
Geoffrey Kabaservice: Well, what does that mean?
Philip Howard: That’s right.
Geoffrey Kabaservice: And he joked, “Well, that really means cruelly cruel and unusually unusual.” There’s simply no way to spell it out. Let’s talk about DOGE, because this was one of the highest-profile manifestations of second-term Trumpism. John Avalon had you on his “How to Fix It” podcast at The Bulwark in January 2025, really just when DOGE was getting going, and you already had concluded that DOGE was doing it wrong. And that was because you said Elon Musk was focused on cutting what government does but neglecting the opportunity to change how government does things. How does that early diagnosis stand up, given what we know now?
Philip Howard: Well, it’s hard to disagree with what I said. I mean, truly for forty or fifty years, the mantra of Republicans has been deregulation. That’s been their idea, right? We have never gotten deregulation. The last deregulator was Jimmy Carter. I mean, maybe Trump can take credit for this now, but really, airline deregulation, all that kind of stuff, ICC… Stew Eisenstadt’s a friend of mine, and he was Carter’s domestic policy advisor. They really did a lot of deregulation back in the Carter era. But Reagan, Bush, they didn’t do any deregulation to speak of because Americans want most of what government does. They want worker safety, they want the social safety nets. We want clean water, for God’s sake.
But somehow this is the idée fixe of the Republicans. So DOGE comes in and what does he do? He had these Wunderkind with him and they just started slashing. There was not even a pretense that they had an idea about how things would work better the day after DOGE. It was just, “Look at how much we’ve cut,” and then they wildly exaggerated how much they’d cut. Of course, it was all counterproductive, because if you’d thought about it for just a little bit, you would know that a lot of the bureaucracy comes from all these regulations that require somebody to fill out a form correctly, and then somebody else to oversee that the form was filled out correctly, and then someone else to give approval to oversee the person who oversees the form. So you have these layers that Paul Light has written about of government where it’s all about compliance. It’s not about doing anything.
So if you really want to cut government and make it efficient, what you do is you cut out all those layers (or most of them). You give people a defined authority, and you create some mechanism above them (because nobody trusts anybody) of some other person who’s independent, who has the power to veto that decision or to change it or whatever. Fine. But if you simply fire the people, what you have is all the requirements to fill out the forms with nobody to fill out the forms. So you end up getting paralysis exponential. The law’s still there, you’ve got to fill out all these forms, and then there’s nobody to do it. It was so misguided.
And by the way, Peter Drucker predicted this. He wrote in 2000, maybe 1999, he wrote a book that said the reason the Reinventing Government initiative has failed is because they’ve tried to patch the system. This is Al Gore and Bill Clinton and stuff, which I actually worked on. They tried to patch a system that was fundamentally flawed at its core, for reasons that I tried to impress. And he said the problem is that the people who are going to come try to fix it now are going to try to fix it by amputation, and that’s not going to work either because they haven’t really diagnosed why it doesn’t work and what needs to change.
Geoffrey Kabaservice: That’s actually quite similar to something John Kamensky said on Santi Ruiz’s Statecraft podcast. He was talking about the Al Gore reinventing government initiative, and he said, “We were hoping agencies would simplify HR and the procurement rules, which would let them do with fewer staff. But Congress ate dessert first and cut the number of people without simplifying the rules.”
Philip Howard:
Right. So, DOGE, well, certainly made government work worse and almost certainly did not save money. They had to hire back a lot of people and all that. I’d say the best thing that has come out of all this — which I do think is good — is a disruption of the current system. And Washington is not a city where disruption comes easily. There’s so many interest groups. So Trump is this bull that has come into the china shop and is breaking stuff right and left. That’s a bad thing, I’m not for that. But at least now we have an opportunity to have the discussion you and I are having. And what’s needed is to come up with the guiding principles of the new Niskanen Party.
Geoffrey Kabaservice: It used to frustrate me no end, in the years leading up to the 2024 election, that when I would talk with people involved in civil service reform, they essentially would say that reform is impossible because the unions will never allow anything to happen. And for better or worse, Musk showed that it was possible for change to happen, even though much of this was bad change. And actually, since we talked last time, you actually came out with a book besides the one we’re speaking about, which was 2023’s Not Accountable: Rethinking the Constitutionality of Public Employee Unions. I think it’s safe to say you’re not a fan of public employee unions, whether in the public schools, police forces, or state and federal bureaucracies. But do you think that the public employee unions can be reformed (or reform themselves) in ways that would make better outcomes possible?
Philip Howard: First of all, unions… I mean, unions in Europe sometimes are very productive and they take part in boards and stuff, so nothing about a union makes it necessarily bad. But American unions —¸ this was also true with trade unions — always had the view that they were the adversaries of management, that they had to always fight, and it was all a zero-sum game. And so that resulted in basically the loss of much of the American car industry. We had these horrible, inefficient assembly lines, which people had written about back in the ’60s and ’70s, and the Japanese came in and ate our lunch.
The public unions only came in really after the ’60s, almost without anybody noticing. They said, “Give us our rights too,” and so they gave them their rights. The problem with the public unions is not that people are paid too much, although they do get their abusive pensions and overtime rules and stuff I write about. The main problem is that their main point of negotiation is to dictate how things are managed, and particularly to dictate in advance. So if management is a continuous process, the unions make that impossible — literally impossible.
The Trump reform, the Trump firing of civil service people and all that, is probably in large part my fault. Trump tried to hire me to do civil service reform in the first election, because I’d written papers suggesting that under Article Two, Congress couldn’t take away the president’s right to hold people accountable. And then people read these papers I wrote and said, “Yeah, I think Howard’s right.” So they called me up. It was, I don’t know, 2018 or something. So it is all my fault.
But the state and local unions are much bigger and much more important, and particularly the teacher’s union — the 3.5 million members. And they have really been for reasons that a bunch of people that Terry Moe at Stanford and others, Michael Hartley at VCU, have written about. Without any room for serious disagreement, they’ve made it almost impossible to fix America’s schools because you can’t… The problem with no accountability, there’s no accountability. So over an 18-year period in Illinois, an average of two teachers out of 95,000 were dismissed for performance in a lousy school system. It’s just no accountability. And the problem with having no accountability in any organization is not that you want to fire a lot of people, it’s that there’s no mutual trust that everybody’s doing their job. What you get is a lousy public culture.
So I’m organizing a constitutional challenge to unions in the state of Illinois right now. I’ve hired law firms and we’re working on stuff, and so it’s something that, hopefully, the shoe will drop sometime this year.
Geoffrey Kabaservice: So again, since we last spoke in 2021, we’ve seen the appearance of a number of significant books and articles on the subjects of Abundance and state capacity. The most famous, of course, is that Ezra Klein and Derek Thompson 2025 bestseller called Abundance, which gave a name to what had been somewhat separate movements and issue areas of concern. But I’m thinking also of the Niskanen Center’s Jennifer Pahlka and her great book Recoding America, Marc Dunkelman’s book Why Nothing Works, Nicholas Bagley’s article on “The procedure fetish,” and also the book Unit X by Christopher Kirchhoff and Raj Shah on the ongoing effort to bring Silicon Valley technology into the Defense Department.
As you survey the growth of this interest in Abundance and state capacity, what do you see as the positives and negatives? Or, since you’ve been plying this terrain a lot longer than many of the authors, what in this movement is most aligned with your views and what is divergent?
Philip Howard: Well, first of all, I think the movement is great. And I know not all of those people, but I’ve done a lot of stuff with Jennifer Pahlka and Marc Dunkelman and some of the other people. So I’m extremely sympathetic and aligned and try to help them when I can. I’m a little skeptical that the word “abundance” is a word that can get popular traction. It just seems a little bit like an academic word to me, or it’s a word for a dinner party in Washington and New York rather than a word for my friends in Mount Sterling, Kentucky where I grew up. But I think the idea of it is good.
I think my only critique is I don’t think that they’ve come to grips yet with what I view as the fact that, as I said earlier, you can’t get it simply by cutting some rules and regulations and procedures. You actually have to come to grips with the fact that public decisions require judgments, and that requires a legal system like the Constitution that actually allocates authority to make judgments, and allocates authority to somebody else to check and balance those judgments. It is the human nature of this. And so, to the extent that you have any kind of mandatory parts of the system, you could cut 90% of the rules and procedures, which they’re never going to do. But you could cut 90% of them and you’d still take 10 years, because the Native American tribe sues and says, “Well, you didn’t consult us and give us a fair shake,” or whatever it is, right? Whatever requirement is left is mandatory.
Geoffrey Kabaservice: Let me quote from a piece you wrote in a very recent issue of The Atlantic entitled “Americans are Afraid of Authority.” You wrote that “A new generation of red-tape critics, calling for an ‘abundance’ mindset, has suggested that the cure is simply to cut back the legal excess. Pruning the red-tape jungle won’t work, however, not only because there’s so much of it but also because what gets left will have been designed to preclude human judgment. For example, reforms in 2020 and 2021 to impose page limits and time limits on environmental permitting have done little to accelerate permitting, because there’s always another regulation that is mandatory: Did you do the study of historic buildings? Or give due consideration to Native American concerns?”
Philip Howard: Yes. I think it’s really important. And once we come to grips with the fact that you can allocate authority to somebody to make a decision — and again, you don’t have to trust them — you can have as many layers of second guesses as you want. It doesn’t take very long to do second-guessing. What takes a long time is trying to prove that the benefits of the power line are worth going through the forest — which you can never do, right? And so once you accept the fact that the emperor has no clothes, that you can’t simply govern by rules, that governing is only done by people — once you accept that fact, all of a sudden this dross drops away.
I mean, you’ve got whatever, 150 million words of binding federal law and regulation. Worker safety is something I’ve done some work on. You could replace 1,000 rules or more with one principle: “Facilities, tools, and equipment shall be reasonably suited for the use intended, in accord with industry standards.” Then give inspectors the authority to go and do that. It’s like unreasonable search, it’s like “cruel and unusual punishment.” It doesn’t give you the answer, but the presumption is when the inspector comes in, there’s an argument.
And the studies on effective regulation — for example, when they simplified nursing home regulation in Australia and radically reduced 1,000 pages of rules into 31 principles — is that it is in fact the uncertainty and the vagueness of the principle that drives people together to work it out. The vagueness in fact has virtues. It makes people come together because everyone’s at risk. Even the inspector is at risk because he might get overruled by a court or by his supervisor or whatever.
Once we can accept the human nature of judgment in governing, we could have what I would call a “spring-cleaning commission” that could go area by area: procurement, infrastructure, various forms of regulation and such. You’re not going to get rid of all rules. There are some rules that are really important. Discharge limits for the environment, you can’t really do that by a reasonable assess. You can have a waiver, but there are things that require specific rules. But not most things, not things involving human judgment and human behavior. So we could have a system of government that most of these periods — the ’60s, the ’30s, the Progressive era — took about a decade to work out. We could have a new system of government that was much better and people were much happier within a decade just by setting down this path. Everything would work better.
Geoffrey Kabaservice: I don’t want to be the voice of pessimism, but let me just raise this as a kind of final question. Some of what you’re talking about is a reform not just of the law but within people themselves. Can Americans learn to trust leaders again? Can they learn to trust each other again? I do worry that Donald Trump is making people less likely to trust leaders with large allocations of power. They will feel that we, the Lilliputians, must pin down Gulliver in a net of laws. However, I think what we’re also seeing is that as people turn away from the national, they’re rediscovering the local. And by working together on concrete problems across political differences, they may rediscover how to trust each other.
Philip Howard: Right. Yes, it’s interesting. This sort of farewell column by David Brooks that I mentioned… I think is really good where he talks about the decline in trust. First of all, what I’m talking about is not giving the president more authority. It’s distributed authority for people to meet their responsibilities. It’s not an autocrat, it’s the school principal. And I’m not saying that you can’t have a check and balance on each one of us.
So in my world, authority is always provisional. Except maybe in the Supreme Court, there’s never a kind of absolute authority. But trust is really important. You really can’t have an effective organization without mutual trust. You can’t ultimately have a successful society where one of people’s main instincts is distrust. The study to read there is that great study by Edward Banfield called The Moral Basis of a Backwards Society, where nobody trusts anybody. They couldn’t even do commerce anymore.
Geoffrey Kabaservice: Amoral familialism.
Philip Howard: Yes. It’s really a fantastic study about how distrust gets in the way. And Kenneth Arrow was a person who did the studies on why the rule of law is important for successful economies. It’s because it creates trust that people will abide by contracts, and so you can do business with people you don’t know.
This essay that I’ve written and not yet published in response to David Brooks’s column on distrust is that it’s really important to give back the freedom of people to interact with each other freely without legal consequences. We can protect against patterns and practices of discrimination, fine. But you can’t interject law into, in my view, individual personnel decisions, interactions in the workplace: “I feel unsafe.” Well, it’s a free country. I like to say that, right? So we have to pull law away so that people can be authentic and real and get to know each other and get to dislike each other and make decisions and say, “I don’t want to work with you anymore. You’re fired.” Fine.
But ultimately, the communities that still work the best, like the Mormons and others, are ones where people trust that deviations from the norms of the values — being dishonest, or not honoring reciprocity, do unto others — won’t be tolerated. That’s where trust comes from. And that requires an accountability mechanism, and we’ve taken it away since the ’60s in the name of trying to be open and inclusive and all that kind of stuff. And so now we’re inclusive of a president who is anti-moral. “But who are we to judge? That’s just who he is, right?” So that’s a problem. That too I think needs to get thrown into this hopper of re-empowering people, including the power to act on our own values, and to judge other people by our values.
Geoffrey Kabaservice: That’s a good note on which to end. Well, thank you so much, Philip Howard, for joining me again. And congratulations on your latest book, Saving Can-Do: How to Revive the Spirit of America.
Philip Howard: Great talking with you.
Geoffrey Kabaservice: And thank you all for listening to The Vital Center Podcast. Please subscribe and rate us on your preferred podcasting platform. And if you have any questions, comments, or other responses, please include them along with your rating or send us an email at contact@niskanencenter.org. Thanks as always to our Technical Director, Kristie Eshelman, our Sound Engineer, Ray Ingegneri, and the Niskanen Center in Washington, D.C.
