Robert Litan is a non-resident senior fellow in economic studies at the Brookings Institution.
Philip K. Howard is the rare lawyer who doesn’t shy from criticizing his profession, and particularly the lawyers who populate the government. He has long argued for a common-sense approach to law to reduce the legal strangehold on American society and shake loose the gridlock in Washington.
In his latest book, “Try Common Sense: Replacing the Failed Ideologies of Right and Left,” Howard makes a case for pushing a giant reset button: in effect, starting over by wiping clean the legal landscape and replacing it with a series of principles that apply a common-law standard to government decisions. Howard, the founder of a nonprofit called Common Good, which aims to simplify government, wants to encourage reasonable action to control pollution, make the workplace safe and guide just about every other policy choice in the interest of the common good. He has been advocating for common sense in law and government for more than 20 years, since his book “The Death of Common Sense” came out in 1994. But looking around today one can’t help thinking that common sense in America is as elusive as a unicorn. Given the difficulty of making any sweeping policy changes, Howard’s prescriptions, while invigorating, face a large uphill battle.
Nonetheless, his analysis of our predicament is valuable. Howard has a gift for the turn of phrase, and he leaves neither political party untouched by his critiques. We are in this mess, he argues, because of a simple lack of trust: Democrats don’t trust the private sector to behave, so they roll out rules to discourage bad actors. Likewise, Republicans don’t trust government, so they constrain its enforcement capabilities. Neither approach amounts to a governing philosophy, Howard argues.
What’s to be done? As Jonathan Rauch showed in his 1994 classic, “Demosclerosis,” a gridlocked, inside-the-Beltway system, hamstrung by an expanding army of lobbyists and lawyers, isn’t likely to suddenly abandon its way of doing business. Howard’s solution is to delegate the search for change to an independent body, the way Base Realignment and Closure Commissions come up with tough military base-closing decisions for recommendation to Congress. In 2013, Michael Mandel and Diana Carew of the Progressive Policy Institute proposed a similar idea for eliminating outdated government regulations.
Howard proposes outsourcing to an independent commission the rewriting of the entire federal statute book and code of federal regulations. The commission would be tasked with producing a vastly streamlined set of general principles that would guide rulings.
These are sweeping, even revolutionary, notions. I sympathize with Howard, who is clearly frustrated after writing thoughtful bestsellers of a similar ilk over the past two decades but not seeing results. He makes a convincing case that in many ways government doesn’t work. But will legislators be any more receptive to his latest suggestions? If bureaucrats were given simple rules and broad authority, would they abuse them? Would they avoid making decisions, as in the past, and continue gridlock? When they made decisions, would courts second-guess their reasonable judgments? And if that happened, would decision-makers give up on reforming government?
It might be wiser to start on a smaller scale than Howard’s sweeping ambition. His wipe-the-slate-clean approach might best be targeted at a specific area. Testing and tweaking streamlined decision-making in one corner of government might allow it to be expanded later. It’s a slower approach, but it may be the only realistic way of getting where Howard and, I think, many of his readers want to go.
But even on a small scale, would the established political parties throw their weight behind such changes when they have a vested interest in maintaining the status quo? Howard implies that we need a third, common-sense party to carry out a reform agenda. It is no accident, perhaps, that Sen. Angus King, an independent from Maine, was the first sponsor of the Progressive Policy Institute’s proposal to eliminate outdated regulations. Maybe he won’t be so lonely if Howard’s ideas get the hearing they deserve.
By Philip K. Howard
Norton. 240 pp. $25.95