Institutional Breakdown a Product of Endless, Burdensome Rulemaking: Philip K. Howard

Hoover Institution (Stanford, CA) - If many institutions feel broken in America today, it may be because the people who work within them are hamstrung by a seemingly endless array of rules, procedures, and prescriptions.

Lawyer and writer Philip K. Howard argues that many of these hurdles - medical workers overburdened with paperwork, school principals kept from disciplining bad teachers, and so on - emerged with the growing legal and bureaucratic system of governing that appeared after 1960, which he says, "disempowers people in their daily choices."

He spoke at the Hoover Institution on May 16, discussing with several prominent Hoover fellows how the US can overcome this bureaucratic paralysis.

Howard came to Hoover by way of an invite from its Center for Revitalizing American Institutions. His new book Everyday Freedom: Designing the Framework for a Flourishing Society formed the basis of the discussion.

Postmarking the start of these changes, Howard cites three developments in the 1960s that he argues are largely what caused public trust in institutions, and their relative efficacy, to break down.

First came the "prescriptive rulebooks;" exhaustively detailed guides of how everything in a public or private workplace should be carried out. Howard says for a job such as a forest ranger, what used to be covered in a pamphlet was replaced by a voluminous binder. Regulatory agencies developed from the 1960s onwards now outline the accepted practice in every type of workplace and most public settings. Many of the new rules could be characterized as "self-evident, trivial or overbearing."

Next was the arrival of "formal procedure" to dictate the terms of virtually any activity by an agent of the state or private enterprise. Meant to ascribe a legal process to an activity to ensure correct conduct, Howard writes that formal procedures have lengthened the amount of time needed to approve a piece of public infrastructure, or discipline a public employee, to comical lengths.

Finally came a new concept of individual rights, brought force through legal precedents over time, that moved from the right to not have your freedoms infringed on by the state or other entities, to the ability for one to "file a lawsuit for any adverse life event and to throw a legal monkey wrench into any decision they disagreed with."

"We took law as this system of outer boundaries, and then made it reach into freedom and start regulating daily actions," Howard said, suggesting the purpose of law moved from general limits on conduct to prescriptive rules on how to do everything.

Taken together, Howard argues these three developments are why so many public workers and private citizens feel powerless to affect positive change.

In response, Howard proposes a form of "de-micromanagement" whereby laws are reduced in scope to a system of goals and principles, freeing people to make their own decisions on how to meet those goals.

This could be achieved by cutting existing laws or generating new ones.

But the solution really does not need to contain any political ideology, instead it should emphasize effectiveness.

"Right now, the competing narrative is either get rid of government or pour more money into it," Howard said. "It's not 'let's make things work better'."

He suggested a program where individual firms found to be violating environmental regulation could negotiate continuing noncompliance, if they could demonstrate an alternative that was "net better for the environment."

He also argued for a new anti-bureaucracy bureaucracy , a "Department of Exceptions" that intervened in situations to promote the common good.

The example he gave was a program to waive parts of a building code deemed non-essential in areas in dire need of affordable housing.

Howard argues the 60-year-old mantra of rules, procedures and individual rights has changed who we are as Americans.

All the emphasis on individual rights has also softened the public's appetite for contributing to the common good, Howard says.

"Let's suppose any politician today said, 'ask not what your country can do for you but what you can do for your country'."

Howard believes this is a 20-year project that begins with the slow but steady elevation of effectiveness as a key attribute and expectation of our leaders. It also requires us to acknowledge that our system is broken, and that we all have a role in fixing it.

He proposed that the ideas to repair the system need to come from the grassroots, as a means of restoring belief that an individual's ideas and concerns still matter in today's democratic system.

"If there were a vision for getting Big Brother out of local services except for guardrails - that has a gravitational force," Howard said. "People would get involved if their ideas about the playground, the park, homelessness . . . if their ideas actually mattered."

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