"Try Common Sense" Reviewed by Bill Schwab
Phillip K. Howard, a lawyer and civic leader, is the founder of Common Good, a nonpartisan nonprofit whose mission is to simplify government. Since 1990, Howard has been writing books proposing that what the United States needs is fewer lawyers like him. “America needs a governing framework that reconnects real people with actual results.” In the introduction he writes:
"The 2016 election... showed, sooner than I expected, that voters
are so fed up with overbearing government that they were ready
for change at almost any price. But the tepid response by both
parties surprised me more. After continuing to work through 2017
with the new administration and Congress to try to unstick the gears,
I realized that persuading Washington is hopeless."
Howard believes people should be judged, and held responsible, based on their good faith efforts and observable results rather than by their compliance to legal constraints. He argues the U.S. legal system is dysfunctional due to an excess of statutes, rules, permit requirements, and court decisions.
Even though these regulations are designed for fairness, public health, workplace safety, and other worthy goals, they have proven to suppress ingenuity, create gridlock, paralyze public servants and private entrepreneurs, and stifle the economy, he maintains. Liberals and conservatives have legislated “ visions of correctness.”
“Our goal was to create a kind of automatic government, where law would operate as a software program, but shackling officials with detailed rules, paradoxically, resulted in disempowering ourselves.”
Howard’s engaging writing style includes providing many examples of the disheartening results of a quagmire of overlapping laws, regulations, and bureaucracies. There is the family-owned apple orchard in New York that has to comply with 5,000 different rules issued by 17 different regulatory agencies. And there is the story of the volunteer firemen in Virginia who saved a suffocating child by rushing her to a hospital in their fire truck. Then they were suspended from duty because the truck was not legally a “transport” unit.
Part of the problem is our federal, state, and local governments’ tendencies to accumulate obsolete law, Howard writes. “Congress is like the Roach motel. Laws check in but they don't check out.”
His harshest criticism is of the public employee unions that he reports were instituted during the Kennedy administration as payback for their support of his election. Howard argues these unions have strayed from their original merit and fairness values to using their clout to fund politicians who help them strengthen their power. He points to the city of Los Angeles that, because of the tangle of rules and regulations, spent five years and $3.5 million to dismiss seven allegedly incompetent teachers, only to have four of them actually removed.
The author’s remedy for dysfunctional government is to reduce the rule of law and increase the rule of people. This is what he means when he says, “try common sense.” Examples of this solution include:
1. Rather than having to seek building permits at a dozen different agencies, establish a one-stop permit shop;
2. write sunset clauses into laws and rules so that regulations no longer serving the public expire when their usefulness ends;
3. empower agencies to terminate incompetent employees;
4. give judges the authority to dismiss inconsequential lawsuits.
Howard's diagnosis of the state of the union is correct; he astutely makes the case that government does not work in many ways. The question he does not convincingly address is, “Who will make all these changes?” He proposes the establishment of an independent body, similar to Base Realignment and Closure Commissions who recommend controversial military base-closing decisions to Congress. But will legislators be receptive to prescribed changes? Furthermore, is there any guarantee his solutions will be effective, or will they just create another layer of bureaucracy?
Howard’s analysis and remedies are spelled out in a slim 166-page section, followed by 80 more pages of notes, bibliography and index. He offers a nonpartisan approach that will gain the attention of anyone frustrated with government's continuing failures and incur strong resistance from groups who benefit from the status quo.