“Take any problem facing our society today,” Philip Howard challenges, “and ask yourself, who has the authority to fix it? The answer is nobody.” The courts are backed up 10 years, it takes as long to complete an environmental review, billions of our tax dollars are being squandered due to laws written by people long dead, and millions more of those dollars go to subsidizing unhealthy foods.
Government dysfunction is not news, but Howard’s book, “The Rule of Nobody,” endeavors to explore the real reason behind the partisan gridlock and special-interest factions we’ve all come to expect and even participate in, most notably during major elections.
Howard does not blame powerful interests with endless cash for the near paralysis and unconscionable fiscal waste of what is democracy in today’s America. Nor does he blame the two-party system that encourages one party to vote against a perfectly reasonable piece of legislation simply because the other party proposed it. Howard blames “legal accretion.” The courts are jammed because judges pride themselves on being nonjudgmental — they’ll hear any case, which binds ordinary citizens in fear, constantly looking over their shoulder for the next lawsuit. It takes 10 years to review a potential construction project for environmental impact because 15 different and uncoordinated agencies need to sign off on the job. And, because of the over-complication and unintelligibility of laws and regulations, public employees fudge their duties simply in order to pass inspection; teachers “teach to the test” a la No Child Left Behind and your garden-variety citizen is too afraid to take much action at all.
But why so much law? Why attempt to preempt every public decision or need by maddeningly granular regulations and brain-numbingly specific rules for every organization from nursing homes to federal insurance programs to public schools and beyond?
“America has lost its soul,” Howard writes, to fear. While I’d like to push Howard to deepen his exposition of the origins of this fear, his case for law being employed as this neutral arbiter of a crowded society’s life together is compelling. “America no longer offers a government for the people. Look at every area of public law. Program by program, the tangle of old legislation is paralyzing society.” Freedom does not mean being able to do or buy whatever you want, but in using your creativity, moral judgment and agency as a human being to find solutions to the inevitable problems of life. Ever since the administrations of Richard Nixon and Lyndon B. Johnson, law has attempted to “fix the problem” of human judgment in governance.
So there is no one at the helm, no person to hold responsible when, say, a woman drowns in a thoroughly life-guarded lake in the middle of the day because the one guard who could have gotten to her in time was assigned a certain partition of lake to patrol and the drowning swimmer fell just outside of it. “The law made me do it” is the programmed response of public employees throughout the hierarchical chain, all the way up to the president. “The game is rigged for powerful people and groups … the internal rules of Congress are designed brilliantly to avoid action.” No, Howard does not provide an adequate remedy for this specific impotency, largely because he does not sufficiently address the role of Citizens United money, ahem, drowning our elections.
Either way, leaving life up to The Law — which is not self-enforcing and requires human interpretation — no matter who we elect has stabbed the heart of democracy, which is supposed to be ruled by responsible, moral people. Howard will tell you in conversational and assertive tones that enshrining the law is a relinquishment of moral responsibility. “The abdication of moral choices has led to moral rot in society, manifested in three pervasive pathologies – encouraging selfish conduct, barring responsible conduct and fostering a relativistic public culture.” He doesn’t use his well-argued platform to just pistol-whip the current status quo, though. He does offer a means of fixing this mess — a necessarily ambitious one built upon assumptions I’m not solidly certain I share.
Howard takes some unnecessary jabs at environmentalists and is a bit too confident in some of his assertions — such as “it has been generations since any farmers were starving.” Additionally, I’m more suspicious of human goodness and the effectiveness of civic action than Howard is, but I will agree with him here: If the system were working well, it wouldn’t need so much red tape to hold it together. Big change is inevitable, even though the current dysfunction of government tantalizes us by removing human responsibility. Either it will collapse like an elderly resident in a nursing home who subsequently dies because the only aide who came upon her was prohibited by assisted-living-facility rules and regs to perform CPR. Or we as a body will make it happen. “Incremental change isn’t the path of history. Incremental change doesn’t capture public enthusiasm and is easily blocked by special interests,” Howard argues. Incremental change is also too easily absorbed by the ravenous bureaucracy that is all around. So, lest you be, too, ask yourself this: if The System were working so well, why would it need all this (red) tape to hold it together? Then consider Howard’s book.