Author Philip K. Howard

The bestselling author and chair of Common Good discusses his thought-provoking text, The Rule of Nobody: Saving America from Dead Laws and Broken Government.

Philip K. Howard is a renowned leader of government and legal reform in America. The son of a minister, Philip got his start working summers at the Oak Ridge National Laboratory for Nobel laureate Eugene Wigner and has been active in public affairs his entire adult life. In 2002, Philip formed Common Good, a nonpartisan national coalition dedicated to restoring common sense in this country. He is a prominent civic leader in New York City and has advised national political leaders on legal and regulatory reform for fifteen years, including Vice President Al Gore and various governors. He is Senior Counsel at the law firm Covington & Burling, LLP, and a graduate of Yale College and the University of Virginia Law School. His latest book, The Rule of Nobody, is a powerful critique of modern legal orthodoxy.


Tavis: Philip K. Howard is a bestselling author, attorney and chair of Common Good, a nonpartisan, nonprofit coalition dedicated to restoring common sense in this country.

He’s written what some call a powerful critique of modern legal orthodoxy. It’s called “The Rule of Nobody: Saving America From Dead Laws and Broken Government”. Philip, good to have you on this program.

Philip K. Howard: Nice to be with you, Tavis.

Tavis: It occurs to me that good public policy to one might be abusive to me. So when we say “dead laws”, what are we talking about?

Howard: I mean laws that have outlived their usefulness, the laws that were passed. New Deal farm subsidies. It’s been 75 years since the last farmer was starving, but we’re spending $15 billion every year and giving it to corporate farmers. That doesn’t make any sense. The $15 billion could be spent in ways that society really needs.

And we have this system of law where we rarely go back and say, okay, we don’t need that law anymore or this law should be adjusted because it’s not working like we intended.

Tavis: Why does our system not allow, for lack of a better word, review of dead laws?

Howard: Well, first, people don’t have the idea. Secondly, it’s actually hard because every time there’s a law, there’s a special interest group around it, and the framers kind of made a mistake.

They didn’t realize it’d be 10 times harder to get rid of a law or change it as it is to pass it in the first place because people will do anything to avoid giving up what they have, the farmers with their farm subsidies or whatever it happens to be.

So we just need to focus on the fact that, if we want to move forward, we’ve got to get rid of some baggage or change it so that we can address tomorrow’s problems, not five or six decades ago problems.

Tavis: But if Washington–this is my assessment at least–if Washington is bought and bossed by big money and big business and a lot of it has to do with these lobbyists who line up on K Street, I take your point made a moment earlier in this conversation. How do you fix that so long as there is somebody who is eating at that trough?

Howard: Well, the bad news here is that big change never happens with small ball. It always happens when there’s pressure from the outside for big change. It happened in the 60s with the civil rights movement, the environmental movement. It happened in the 30s when people were on the street starving.

It happened in the progressive era after decades of agitating that the corporate bosses were destroying child labor, you know, who finally got regulation. It happened in the Civil War after decades of work by the abolitionists that it was immoral to have slavery.

So big change always comes in big gulps. And what’s happened–it’s not the first time it’s happened in history–is that we’re simply a mature society and we’ve got these piles and piles of laws. I give one really good example.

So President Obama duly elected by a majority of Americans wanted to stimulate the economy in 2009. He got bipartisan support. He got $800 billion to do it. 30% of it was going to go to infrastructure. In the five-year report released last year, it turned out that 3.6% got spent on transportation infrastructure.

Why is that? Not because the president didn’t want to do it. It’s because the President of the United States lacked the authority to approve even the most basic rebuilding projects. We’re not talking about roads reversion forests. We’re talking about rebuilding broken down bridges.

Well, FDR, when they passed the civilian works administration in November–I think it was 1933–within seven weeks, the guy who ran the program, Harry Hopkins, had hired two million Americans. Well, you’ve got to give people back the authority that goes along with their jobs, you know, their responsibility.

Tavis: What was obstructing his authority in that regard?

Howard: The law. It piled up. It had so many approvals by so many different agencies. You know, literally, any big project will require the approval of 20 or 30 different agencies.

It’s like negotiating an international treaty and it’s in the law. So the president can’t ignore the law. The law says, well, then this department has to approve it. And it’s all well-meaning, but somebody needs to be in charge.

Tavis: I suspect that, in this campaign that is now underway with Mrs. Clinton now declaring and Mr. Rubio and Mr. Cruz and Mr. Paul and Mr., Mr., Mr. to come in the coming days, everybody’s running. You running?

Howard: No, no, no, not yet, not yet [laugh].

Tavis: Not yet [laugh]. Everybody else is running. I suspect that we’re going to hear this phrase a gazillion times certainly from the right: broken government. That’s one of their favorite phrases, broken government, broken government, broken government.

When you use the term for your subtitle, when you say broken government, what do you mean? Is our government really broken as you see it?

Howard: It’s broken not because it’s not doing the right things. Because most of what government does, I argue, it needs to do. We need to have regulation of environment. We need to oversee nursing homes and daycare centers. Our freedom depends upon it.

It’s broken because the government officials supposedly in charge of doing that are tied to thousand-page rulebooks and they can never use their common sense. And it happens to tie up the citizens at the same time.

So everybody goes through studies. People go through the day with their noses in rulebooks? And they can never actually be fair or, if you’re a teacher, you don’t have the freedom to be spontaneous and to make an exception or to do the things that make life work.

You know, we got this bad idea that you could actually make things work properly if you only have the rules detailed enough. And what I argue in “The Rule of Nobody” is that’s actually completely wrong. Law is not supposed to replace freedom. It’s supposed to be a framework for freedom.

So, yes, let’s set goals. Nursing homes should have a homelike setting and respect the dignity of the residents and have nutritious meals. Don’t give them a thousand rules that say food shall be stored 15 centimeters above the floor and windows should be no more than three and a half feet above the floor, you know, all these sort of well-meaning rules.

Because it takes away the ability of the people running the nursing home and the government inspectors to actually ask the question, is this a nice place? Are they really being nice to the residents?

Tavis: I wonder whether or not, Philip, this problem which you’ve acutely laid out for us tonight, I wonder whether this problem is made worse by the notion of states’ rights.

I mean, you’ve given a number of examples tonight that are examples at the federal level. But when so much of those in government now want to push responsibilities and rights and authority and oversight to states, does that make this problem worse?

Howard: Well, it can. So in the case of infrastructure, you’ve got an interstate–you know, any power lines. You know, I think the authority ought to be with the federal government. You can’t let every county through which the power line goes say yes or no. You’d never build a power line to take the energy from the wind farms to, you know, the cities.

In the case of local services, schools or nursing homes, I actually think there should be at least initially more authority locally because that’s what makes democracy important. It’s closer to the ground.

And my criticism of the Republicans is that they take the failure of government and they say let’s get rid of government, you know, Tea Party. Well, that’s never going to happen. You know, the more interdependent the world becomes, the more we’re going to need government protection to safeguard against lead paint on toys or whatever.

But we do need to make democracy important and to make anything on the ground work, you need the people on the ground to be able to always ask the question, is this the right thing to do?

And we’ve created this red tape jungle that basically prevents both the president in the White House and the teacher in the schoolhouse from actually doing that.

Tavis: We’ve been somewhat in the weeds and I’m glad we were because your book takes us into the weeds of what needs to be changed and how it ought to be fixed, so I appreciate that.

Let me pull back for a second. You said something a moment ago that makes me think a bit more philosophically for this next turn in our conversation. You mentioned the Tea Party.

It seems to me that part of what they started was a debate which I think is still ongoing about what the proper role of government is. My question is, what do you make of that debate in its current frame about how we decide as the Demos what the proper role of government is or ought to be?

Howard: I think the debate today is almost entirely in the wrong dimension because it’s against no government versus big government. And I think what we need is a government in many cases that has oversight over almost all joint activities since a law is about setting boundaries to prevent people from acting wrongfully.

But government should hover in many cases further away from the activity and let people do the activity in their own way and only come in when they’re doing it badly instead of coming in with–I’m not exaggerating–1000-page rulebooks that put shackles on everybody and say you just go through the day as if you were a robot following the rules.

And that’s not the way to run a free society. It’s not a way to engage human energy and human love and all the emotions you need to make any social service, to use one example, to make it work.

Tavis: Speaking of running government, you have a number of propositions in this book that you suggest that we consider for how we could make this thing run better. One of them is a citizens council to run things. Explain how that would work.

Howard: It’s the idea of George Kennan’s, a famous diplomat who died maybe 10 years ago. Basically, it would be like a version of the Simpson/Bowles Commission on debt where you get a group of elder statesmen to come in and say, hey, wait a minute. Here’s a way of working it better.

But in this case, it would be a group of people appointed indirectly, but are leading citizens, which would have no power. The group would have no power. They couldn’t tell people to do anything, but they would comment to the Kennan’s idea on how government was working.

So they would take the current Congress and say this is the most pathetic Congress that’s ever been in the United States of America. They can’t do anything. All it does is stop things from happening and point fingers at the other side.

And if it said that, then all of a sudden, the newspapers, which today they take it seriously. They just report on what’s happening. Now they would have a different frame of reference and say the citizens council is saying that Congress if failing and we need to come up with new ideas to get it moving again.

Tavis: Philip K. Howard is his name. His new book is called “The Rule of Nobody: Saving America from Dead Laws and Broken Government” now out in paperback. Philip K. Howard, good to have you on this program. Thanks for your work at Common Good.

Howard: Great to be with you, Tavis.

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Last modified: April 15, 2015 at 3:56 pm