- - Sunday, May 18, 2014

THE RULE OF NOBODY: SAVING AMERICA FROM DEAD LAWS AND BROKEN GOVERNMENT
By Philip K. Howard
W.W. Norton, $23.95, 256 pages

No one, perhaps, can better sum up the disease of modern American government than Rooster Monkburn, the world’s most notorious cowboy sock monkey.

Monkburn was headed west from St. Louis (as any good aspiring cowboy might) last year when he and his owner, doll designer Phyllis May, ran sidelong into an ornery officer of the Transportation Security Administration. The overscrupulous TSA agent confiscated the monkey’s two-inch-long toy sidearm, saying “this is a gun” and threatening to call police.

“Rooster Monkburn has been disarmed so I’m sure everyone on the plane was safe,” an incredulous Ms. May told reporters. “I understand she was doing her job, but at some point doesn’t common sense prevail?”

Stories of government ineptitude and caprice are passed around these days like bad jokes — though many of them are far from funny. Three years ago, California firefighters watched from shore for a full hour as a suicidal man drowned in shallow waters. None of the firefighters had been recently recertified in land-based water rescues, so the rule book prohibited their trying to save him. “Well, if I was off-duty, I would know what I would do,” the fire chief said in his department’s defense, “but I think you’re asking me my on-duty response, and I would have to stay within our policies and procedures, because that’s what’s required by our department to do.”

The standard lament goes like this: Too many bureaucrats hold too much sway over the lives of average Americans. However, in his new book, “The Rule of Nobody,” Philip K. Howard makes the counterintuitive case that much of the dysfunction in government stems not from an excess of authority, but from a deficit. “Washington is not filled with powerful people,” he writes. “It is filled with people who have no authority to do much of anything other than to prevent change, and maybe pay a favor here or there. Everyone scurries around the baseboards, playing the game and grabbing for scraps.”

The argument is multifaceted, but much of it hinges on Mr. Howard’s dissent from the idea that modern legislation should be written with minute specificity, to describe not only the end goal of the law, but every step, every procedure, every detail along the way. In theory, this kind of lawmaking is meant to knead arbitrariness out of public officials’ decisions and establish a consistent standard for enforcement.

Yet Mr. Howard argues that in practice, attempting to address every permutation of public policy — in writing, before the fact — is a “bad form of central planning” that “values compliance over results.” There are 100 million words of binding federal law or regulation, according to his count, more than any person or business can reasonably expect to comprehend. Only a small fraction of these can be enforced — but which portion changes depending on the whim of the inspector on the scene. Bureaucrats are absolved of making judgment calls, so they hide behind the rules and act like idiot savants, quoting chapter and verse of obscure codes while ignoring the obvious — that a toy is no danger, or that a man is drowning 150 feet away.

The legal morass has become so thick that practically no one bureaucrat, agency, politician or party has the power to make any decision of consequence. Raising the roadway of a bridge between New York and New Jersey required 47 permits from 19 different entities, none of which could cut through the red tape. Mr. Howard quotes a study that found “a federal agency that needed an 18-foot chart, with 373 boxes, to explain its rule-making process.”

The solution, he argues, is to instead regulate by principle: First, write general rules. Mr. Howard says reams of regulations could be condensed into simple statements such as “facilities and equipment should be reasonably suited for the use intended, in accord with industry standards.” Second, give identifiable public officials responsibility for overseeing the rules, and third, hold the regulators accountable for results and overturn their decisions when they err. “The protection against bad judgment is not mindless bureaucracy, but good judgment,” he writes.

Mr. Howard distills his ideas down to five proposed constitutional amendments that he says could right the ship of state and send it merrily on its way. The first four would mandate that all laws having budgetary impact sunset after 15 years, and would restore the president’s power to line-item-veto congressional budgets and unilaterally manage executive personnel. These seem worthy of at least debate, if not support, though their chance of enactment seems less than slim.

The fifth would create an independent, nine-member Council of Citizens, tasked with appointing various commissions to suggest simplifications to the legal code. Further, the council would act as a sort of political hall monitor; Mr. Howard writes that it would “evaluate the moral basis of policy choices” and “introduce shame into a political culture that today accepts cynicism as standard operating procedure.”

Perhaps this is that cynicism talking, but is there a man alive (other than Mr. Howard, apparently) who does not think that such a Council of Citizens would be inevitably perverted into just another partisan battleground? That the councilors from California would find cuts to social programs shameful, that those from Texas would find ballooning budgets immoral, and that Republicans and Democrats would go to untoward lengths to tilt the unelected body in their favor?

Instead of the rule of nobody, a citizens council would be the rule of nobodies. Who knows: That still might beat the status quo.

Kyle Peterson is managing editor of The American Spectator.