I'm reading Philip Howard's Life WIthout Lawyers, and this passage really resonates:
Washington has slowly sunk into an ocean of law, rules, and processes, most created in the past forty years--over 100 million words of binding federal statutes and rules, with more added every year and almost none ever taken away. You may like the idea of tight legal controls over bureaucrats--no official can do anything without swimming through years of legal processes. But inertia in government is costly. It's hard to change priorities, or fix what doesn't work. The legal detail perpetuates failure while also insulating Washington from democratic accountability . . .
People in Washington like the culture of rules. All the law is a barrier to entry to outsiders. Rules appeal to teh risk-averse side of human nature. Rules provide almost foolproof cover--who can blame you if you're following the rule? Rules relieve people of the need to think. . . [t]hey can relax in the caverns of rules instead of worrying about results. People are "mightily addicted to rules", the Scottish philosopher David Hume noted.
Periodic efforts to control government with more laws just make the problem worse. Trying to control bureaucracy usually creates more bureaucracy. Professor Paul Light calculated that there are now as many as thirty-two layers of federal officials between the person doing the job and the person on top. (The rule of thumb for well-run companies, by contrast, is five layers.() Laws designed to prevent corruption have the effect of thickening the cover of bureaucracy in which corruption can thrive. . . The problem is in the premise--that law should tell people how to do things. Making detailed laws is like pointing a car in one direction and leaving the passengers in it without the power to turn the wheel when they hit a curve. Sooner or later the car drives off a cliff. . .
For decades we have been working feverishly to create a legal regime that minimizes official flexibility--detailed rules, and then rules to explain the rules; open-ended rights, and then litigation to keep expanding the scope of the rights.
The mania for rules is hardly unique to the public sector, but companies that become too encrusted eventually succumb to competition from nimbler firms. The feedback to discipline government is much slower and clumsier. Moreover, we aren't really trying to restrain the barnacle-like overgrowth. Most actors in the political process want these detailed rules to hamstring their enemies--they focus not on the cost and inertia, or even the counterproductive activity, but of getting control of the rule-making process, hoping to lock-in their preferences beyond alteration by the whim of the public. But as Howard documents, the result is a system that is fabulously wasteful, and often does things that no one wants, because those are the rules. FEMA couldn't send all the trailers it purchased for Katrina victims to the gulf because of rules about deploying mobile homes on floodplains, and it couldn't deploy them to help tornado victims in Arkansas because the affected area wasn't big enough to be an official emergency disaster zone. So instead the trailers rotted in storage.
I'm not advocating a return to the spoils system. But has all this minute rule-making really made us better of than the days when we simply elected officials, had them appoint agency heads, and fired them when they seemed to be doing a bad job?