The best law book in the last twenty years received very little attention from anyone in the American legal academy. That book, The Death of Common Sense by Philip K. Howard, was an indictment of the numberless rules and regulations in this country that have assumed a life of their own, to the detriment of old-fashioned commonsensical decision-making. Howard was the kid who said “The Emperor has no clothes,” with the difference that everyone in a position to correct things told him, “Shut up, kid. He looks just fine to me.”
Nothing daunted, Howard has now returned to the fray with a new book, The Rule of Nobody, which describes how the arteriosclerosis of regulatory law chokes off our ability to get things done. Rule is piled upon rule, Pelion upon Ossa, until every worthwhile project is crushed by the weight of the bureaucratic mass. If it wasn’t so painful, it would be funny. Howard talks about efforts to open up the Port of Newark, the largest seaport on the East Coast, to new super-large container ships, obstructed by the Bayonne Bridge. Built more than seventy years ago, the bridge is just over 150 feet above the water. Pretty good for its time, but the new ships require a clearance of 215 feet. Presented with this problem, the Port Authority’s engineers came up with plans either to build a new bridge or dig a tunnel, each with a price tag of $4 billion.
That’s when someone suggested retrofitting the existing bridge. Just build a higher span, demolish the lower one, and everything would be copacetic. And here’s the best part: All this would cost $1 billion, representing a savings of $3 billion. A no-brainer, one would think, but that’s when the trouble started. The project required forty-seven permits from nineteen different government entities, and just finding out who was in charge was a daunting task. An environmental impact statement was required, but nobody seemed to know who could put one together. The Port Authority was asked to conduct a historical survey of every building in a two-mile radius. Native American tribes had to be given the opportunity to object, lest their burial grounds be disturbed, and so the Shawnee Tribe of Oklahoma was given a chance to weigh in. Environmental groups worried about secondary effects: If the bigger ships got to Newark, that might increase truck traffic, and then God knows what might happen! Three years into the process, President Obama tried to cut through the deadlock by designating the bridge project essential to the nation’s infrastructure, but that didn’t seem to make a difference, even with the EPA, whose staff is theoretically under his command.
What all this exposed, says Howard, is the “Rule of Nobody,” the do-nothing regime under which too many regulatory bodies are given veto powers. We have an administrative system designed to identify problems but not to provide solutions. We have officials who, given a proposal, have the power always to say “no” and never to say “yes.” The Rule of Nobody resembles the executive-legislative gridlock familiar to Washington watchers, except that the deadlock involves umpteen regulatory agencies, staffed by a mixture of incompetents, zealots, and public-minded civil servants, all of whom are committed to their agencies’ narrows goals and little else, and all of whom need to be on board for a project to proceed.
How did we get here? We wrote excessively detailed laws that leave no room for the exercise of discretion by regulators. This is a peculiarly American disease, the elephantiasis of the law. Other countries legislate with a broader brush, enunciating general standards rather than minutely detailed rules, writing statutes a fraction of the length of comparable American laws.
Hayek recognized the ailment and attributed it to the hubris of planners who imagine that they can anticipate and prescribe rules for the innumerable future states of the world in thousand-page bills. I don’t think that alone explains it, however. Hubris isn’t a particularly American vice. Rather, I’d put it down to three things. One is the corrupt interest-group bargains, the payouts to favored donors or constituencies, that work their way into legislation in Washington and in state capitals. Think of all the special goodies to be found in Obamacare—for example, the “Louisiana Purchase” for Mary Landrieu and the “Gator Aid” for Florida’s Ben Nelson. The second reason is that we Americans don’t trust anybody, one another least of all. Surveys show that we are the least trusting people in the First World. (Notice how you didn’t take my word for it just now?) When you don’t trust other people, you’re not willing to cut them slack and rely on their good-faith discretion. Finally, it comes down to money. America is one of the wealthiest countries in the world, and public wealth is concentrated in Washington more than in any other capital city. That means that the United States can afford to have more regulators than other countries, to serve the public, to administer their agencies, and to generally gum up the works.
All of this imposes an enormous burden on the American economy—and that’s not even the worst of it. With all those rules, you’re going to have a lot of rule-breaking. And when I say a lot, I mean we’ve all been rule-breakers. And because criminal sanctions are generally imposed on rule-breakers, sanctions that don’t distinguish between guilty minds and honest ones, that means we’re all potential felons. You know, like Mitt Romney was said to be by the Obama campaign in 2012. Not to worry, though: The decision whether or not to prosecute will be made by impartial people at the Department of Justice, people guided by the punctilio of an honor the most sensitive. People like Eric Holder.
So what’s the answer, asks Howard. In a word, politics. Right now no one is accountable for the mess, and every politician is able to wash his hands of it. Howard would like to give the president more authority to oversee the regulators. Countries such as Britain and Canada have a centralized bureaucracy with a Privy Council Office at the top, a body that reports to the prime minister and to which every bureaucrat ultimately answers. I can see problems with strengthening presidential power, and I might want to see an American Privy Council Office (maybe one with a more republican-sounding name) reporting to Congress as well. Nevertheless, the Rule of Nobody is a bureaucratic nightmare from which we are all trying to awake, a classic problem of power without accountability. The answer must involve more accountability—oversight of bureaucrats by elected officials and oversight of elected officials by voters.
Howard has written a splendid book, as entertaining as it is alarming, about a serious problem. His learning is deep but lightly worn, and I cannot imagine how anyone could read it without responding enthusiastically to his call to arms.