Here’s his basic argument:
America is broken, because we have moved from legislating and regulating based on general principles to instead regulations which spell out requirements in great detail but miss the big picture. What’s more, the “rule of nobody” means that, once these regulations have been set forth, no one takes responsibility for making the system work. And the effect of all of this is to lose a sense of moral action and leadership.
Here are some of the specific examples that Howard gives to illustrate the problem:
He starts with the Bayonne Bridge in New Jersey, where the Port Authority had determined in 2008 that, in order to make the port of Newark usable by the “post-Panamax” ships after the Panama Canal-widening is completed in 2015, the bridge clearance needed to be increased from 151 to 215 feet. They determined that, in order to avoid a $4 billion new-bridge construction cost, they could simply raise the existing bridge.
But as of 2014, construction hasn’t started, due to endless review requirements and lawsuits, even though there was no impact on the environment because it was a change to the existing bridge — but the environmental groups objected because of the simple fact that success would mean that the Newark area would grow its economy. On top of this, there was no “champion” for the project, no federal agency willing to take responsibility as the designated “lead agency.”
Or the case of a community soup kitchen which shut down in 2011 after serving meals for 26 years without incident. You can guess the reason: food was prepared in volunteers’ homes, which the health department deemed unacceptable because they couldn’t confirm that the food-prep conditions were sanitary.
The aspect of detailed rules that is most destructive of freedom and of regulatory purpose — worse even than unpredictability, arbitrariness, and distortion of goals — is that rigid dictates prevent people from dealing with the infinitely complex circumstances of real life. . . The Deepwater Horizon oil spill in 2010 was exacerbated by safety mechanisms that didn’t fit the crisis. (p. 40)
Consider nursing homes: in most countries, they’re regulated by a set of general principles. For instance, following a reform in 1988, Australia has a set of 31 outcome-oriented standards. In the United States, it’s thousands of detailed regulations from dictating everything from the temperature of the food (held at 140 degrees before serving, and not less than 115 degrees when served) to windowsill height (not greater than 3 feet above the floor), which themselves produce a rules-following culture at the expense of actual patient care.
Sleeping residents were wheeled into activities so that a home could count them as “participating,” even though the sleeping residents degraded everyone else’s enjoyment of the activity. In response to a regulation that required pictures on the wall, a common practice in Illinois was to tear pictures out of magazines and slap them onto walls with tape prior to inspections. (p. 48)
In another study, it was the patient aide who excelled at complying at the regulations that ruled the roost, even though she was mean and bullied the other workers and the patients themselves.
Howard says,
Rules change human values. The supremacy of the organizational system trumps right and wrong, putting a cloak of legitimacy around people whose conduct is antisocial or even cruel. (p. 80)
. . .
To support our freedom, the boundaries of law must support choices that are reasonable and fair. That requires judges and officials to assert those values, not abdicate their responsibility to people who use law for self-interest or self-aggrandizement. (p. 81)
In addition to empowering people to act immorally, Howard says, “Bureaucracy disempowers people from acting morally.” Perhaps the most famous recent example was the lifeguard who was fired for rescuing a drowning man — because he was outside his designated zone on the beach. Another instance: an Iraqi working for the army applied for asylum and his application was delayed for one bureaucratic reason after then next, no one really caring, until it was too late — he was beheaded. Another example: a woman collapsed at an assisted living facility. Protocol stipulated that they then wait for help to arrive, so no one, no one was willing to follow the 911 operator’s request to attempt CPR. And when the paramedics arrived, it was too late. Another example: firefighters refused to rescue a drowning man because they weren’t properly certified for water rescue and didn’t want to risk legal liability.
America is losing its soul Instead of creating legal structures that support our values, Americans are abandoning our values in deference to the bureaucratic structures.
Depressed yet?
Howard then talks about our government.
He cites the fact that, when the WTO ruled that our cotton subsidies violated free-trade agreements, and imposed trade sanctions, Congress chose, not to end the cotton subsidies, but to pay Brazilian cotton farmers.
Congress has essentially abdicated its responsibility, wholly neglecting to fix obsolete laws. Special education now consumes 25% of the total K-12 education spending due to open-ended special-ed laws. We’ve all heard recitations of the 82 teacher-training programs, 79 renewable energy programs, 16 programs teaching personal finance, and so on. The red tape in starting a business is far greater than places like the Netherlands and Germany. It doesn’t end. The weatherproofing program in the stimulus bill weatherproofed very few homes because government agencies had to spend thousands of hours calculating “prevailing wages” for “weatherproofers,” not an existing wage classification. And politicians are more interested in partisan advantage than fixing the system — and would rather not, if they would have to share credit with the other party. At the same time, Congress doesn’t even legislate any more — they don’t understand how government works, they’re clueless as to the impact of their legislation; that’s all left to the staffers.
What are his solutions?
His two major proposals are, first, simplified legal codes, equivalent to the Uniform Commercial Code after World War II, and, second, automatically sunsetting all laws “with budgetary impact.”
Unfortunately, his book reminded me of a book at the library recently on “how to fix Illinois” — full of nice suggestions for good government but nothing on how to fulfill the basic prerequisite, how to get officials in power who care about good government in the first place, which is not as easy as it seems, when existing seats have been so carefully gerrymandered.
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