Can Government Make Essential Choices?


Senator Sam Brownback, running for governor of Kansas, has proposed an "Office of the Repealer" for his state, whose job would be to get rid of old laws that no longer make sense. Andrew Cuomo, running for New York governor, is proposing a dramatic cleaning out of accumulated bureaucracy. In a 250-page book released when he announced his campaign last month, Mr. Cuomo notes that, in the state's health department alone, the legislature has created at least 87 administrative units, including 46 councils, 17 boards, six institutes, six committees, five facilities, two task forces, two offices, two advisory panels, and one work group.

Brownback and Cuomo are on to something important. Democracy can't function when essential choices are dictated by laws passed decades ago. Like sediment in the harbor, laws pile up until it is impossible to get anywhere. We wonder why officials are powerless to balance budgets, or contain health care costs, or maintain order in schools. The answer is the same in each case: Statutes and other legal dictates have pre-ordained current practices -- they dictate how the public budget is spent (mainly on entitlements), how health care is reimbursed, and how teachers must make ordinary classroom management decisions.

Democracy is supposed to be a process where we elect leaders to make choices -- especially choices that balance various social needs. Instead, law has taken a life of its own, like a dead tyrant ruling from the grave. While it's hard to pass new laws, it's basically impossible to get rid of old laws. Why? The reason is simple -- because they're surrounded by armies of special interests.

These issues were aired last week at a forum at the National Constitution Center in Philadelphia, hosted by Common Good. Experts on entitlements, campaign finance, and accumulated bureaucracy came together to begin a discussion on "ending government paralysis." New York City Schools Chancellor Joel Klein and former Los Angeles Mayor Dick Riordan discussed the virtual impossibility of managing public agencies when you're shackled by thousands of prior legal commitments. Former Clinton Administration officials Elaine Kamarck and Sally Katzen explained how government gets ever thicker. Former federal officials Belle Sawhill and Gene Steuerle described how entitlements threaten to bankrupt our children. Brookings scholar Jon Rauch explained the dynamic of special interest power--a small group that cares intensely about its issue (he used the example of the cotton subsidy) will always trump the more diffuse general interest. Harvard's Larry Lessig and the University of Texas' Bryan Jones discussed the need to end the pernicious influence of special interest money in campaigns.

The bottom line is this: America needs an overhaul of its governing institutions. The goal is not to deregulate, but to allow government to make needed choices. The only way to do this is with a spring cleaning of law. Various ideas were floated at the conference -- Zephyr Teachout (who ran Internet outreach for Howard Dean's presidential campaign) called for radical decentralization; I suggested sunset clauses on most laws and an overhaul of civil service to restore accountability. Bryan Jones suggested a constitutional amendment to allow regulation of campaign finance -- as he put it, "Money is not speech." (Video clips from the conference will be posted in the next few weeks.)

Americans are fed up, as Pew's Michael Dimock described in his summary of recent Pew Research Center surveys. But most politicians and government officials seem perfectly happy to continue the game of partisan finger-pointing instead of dealing with the institutionalized powerlessness of our mature democracy. Americans know that ossified government cannot do the job -- and apparently Messrs. Brownback and Cuomo do too.

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Philip K. Howard is a lawyer, author and chair of Common Good. He is the author, most recently, of Life Without Lawyers: Restoring Responsibility in America, and wrote the introduction to Al Gore's Common Sense Government. More

Philip K. Howard is the author of Life Without Lawyers(Norton 2009), as well as the best-seller The Death of Common Sense(Random House, 1995) and The Collapse of the Common Good(Ballantine, 2002), and he is a periodic contributor to the op-ed pages of The New York Times, The Wall Street Journal, and The Washington Post. He advises leaders of both parties on legal and regulatory reform issues, and wrote the introduction to Vice President Al Gore's book Common Sense Government. A practicing lawyer, Howard is a partner in the law firm Covington & Burling LLP. In 2002, Howard founded Common Good (, organized to restore common sense to American public life. The Advisory Board of Common Good is composed of leaders from a broad cross-section of American political thought including, among others, former Senators Howard Baker, Bill Bradley, George McGovern, and Alan Simpson. Howard is a civic leader in New York and is Chair-Emeritus of the Municipal Art Society, a leading civic group that spearheaded initiatives to preserve Grand Central Terminal.
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