One nation, under too many laws

By Philip K. Howard

Sunday, December 12, 2010; B01



Philip K. Howard, a lawyer, is the chair of the legal reform nonprofit Common Good and the author, most recently, of "Life Without Lawyers."

America is choking on laws of our own making.

Once a law is in place in the United States, it's almost impossible to dislodge. Our political class assumes that, after a law is forged in the crucible of democracy, it should be honored as if it's one of the Ten Commandments - except it's more like one of 10 million.

We even have a hard time modifying laws that were explicitly designed to be temporary. Just look at the current battle over the Bush-era tax cuts.

Having that debate at all is unusual. Once enacted, most laws are ignored for generations, allowed to take on a life of their own without meaningful review. Decade after decade, they pile up like sediment in a harbor, bogging the country down - in dense regulation, unaffordable health care, and higher taxes and public debt.

A healthy democracy must make fresh choices. This requires not mindless deregulation but continual adjustment of laws. Congress could take on this responsibility if it followed a simple proposal: Every law should automatically expire after 10 or 15 years. Such a universal sunset provision would force Congress and the president to justify the status quo and give political reformers an opening to reexamine trade-offs and public priorities.

Unless forced to make tough choices, Congress will keep kicking the can down the road. The looming crisis of the national deficit, for example, is impossible to address without changing existing entitlement programs. But when the co-chairs of the National Commission on Fiscal Responsibility and Reform announced their proposals last month, including modifications to Medicare, the condemnation from Congress was swift. "This proposal is simply unacceptable," said House Speaker Nancy Pelosi. Even Rep. Paul Ryan, a Republican member of the commission who preaches fiscal discipline, refused to vote for the proposals.

"It's not true that bipartisanship is dead in Washington," Will Marshall at the Progressive Policy Institute recently observed. "There's a perfect bipartisan conspiracy to bankrupt the country."

On the other hand, the political scuffle over ethanol subsidies - with Republican fiscal hard-liners facing off against Republicans from farm states - shows how sunset laws can reinvigorate democratic debate. Critics have long questioned billions of dollars in subsidies (last year, $7.7 billion) for a product known to have serious environmental drawbacks. The issue has come to a head, however, only because ethanol subsidies, like the Bush tax cuts, are set to automatically expire at the end of this year.

Sunset laws have been proposed from time to time, and they were a domestic priority for President Jimmy Carter. "Too many Federal programs have been allowed to continue indefinitely," he wrote to Congress in 1979, "without examining whether they are accomplishing what they were meant to do."

But that effort stalled and, 30 years later, accumulated law has become a defining problem of modern democracy. To an amazing degree, our government's choices are dictated by political leaders who are long dead. Health-care programs and Social Security - eating up about 70 percent of each year's federal revenue - don't even come up for annual authorization and are not limited by a budget. Many programs outlived their usefulness decades ago: New Deal subsidies intended for starving farmers now go mostly to corporate farms ($15 billion annually), and inflated union wages on government contracts (more than $11 billion per year), another relic of the 1930s, have the effect of limiting public works and employment.

The political debate skims the top of this vast legal pile, though most of the problems are embedded in the structure underneath. Take health care: The Republican House leadership vows to repeal or cut back the recent "government takeover," which it calls unaffordable. But the unaffordability of American health care - which costs twice as much as care in other developed countries, with worse outcomes - is mainly caused by preexisting programs. In this bureaucracy, every incentive is misaligned. Elaborate reimbursement guidelines encourage expensive procedures, with no incentives for physicians to be prudent. Patients with insurance see health care as an entitlement, allowing hypochondriacs to clog doctors' waiting rooms. But neither party, we now know after the lengthy debate on health-care reform, will take the political risk of challenging these wasteful practices.

Daily regulatory choices are also immobilized by the buildup of too many laws. The important safeguard of environmental review, for example, has evolved into a kind of perpetual process machine. A wind farm was recently approved off the Massachusetts coast after 10 years of study by 16 different agencies. Now the project is stalled by a dozen lawsuits claiming, yes, inadequate review. Rebuilding this country's fraying infrastructure is basically impossible, at least in a timely way, because no official has the authority to say "go." To overcome delays such as these, Congress needs to reconsider how its laws requiring environmental study work in practice.

The intransigence of old laws is caused, in part, by a flaw in our constitutional system. The founders made it hard to pass legislation, dividing power among different branches of government, but they apparently failed to consider the forces that would entrench the final product. In the Federalist Papers, James Madison hoped that factions would balance each other out in lawmaking. Once a measure is passed, however, an army of interests immediately builds a fortress of relationships around it. Not one word of law can be changed without a majority of Congress running a gantlet of special interest influence. That's why fixing old laws is unthinkably difficult.

An omnibus sunset law would dislodge the status quo by requiring that every statute expire at some point, unless it is reenacted. Laws with budgetary mandates, such as subsidies, should probably have shorter fuses than broader regulatory laws, such as antitrust statutes. It would be much harder for Congress to overtly support a wasteful subsidy than to passively let it continue. Our democracy would be revitalized if there were an opportunity to debate how laws actually function. However unsatisfactory the current debate over tax cuts, at least there is a debate.

The practical challenge of systematically reviewing the huge body of existing law is enormous, of course. Most members of Congress can't even read all the way through the new laws they pass, such as the 2,700-page health-care bill or the 2,300-page financial overhaul act. How could they possibly go back and make sense of hundreds of thousands of pages of old ones?

There is one common technique that has been used in successful legal overhauls, from Justinian's recodification in ancient times to the Napoleonic code that is the basis of modern European civil law to the uniform commercial code adopted in the United States in the 1950s. The technique is this: radical simplification.

Simplification of law has many virtues. It allows legislatures to pass measures of a general nature, setting goals and operating principles without trying to anticipate every regulatory situation. Think of the Constitution or the straightforward recommendations of the deficit commission. The current convention of law-as-instruction-manual suffers the idiocies of central planning, forcing everyone to go through the day with their noses in rule books instead of using their common sense. It also spawns such complexity that overhauling the vast accumulation of law would be hopeless - like trying to prune a jungle.

Simplification offers the only practical way for Congress, or special overhaul commissions it might appoint, to start mucking out the statutory stables. Laws that run several thousand pages should be rewritten in 50 pages or less. Only then will members of Congress actually understand what they're voting on, and the rest of us understand what's expected of us.

There have been a few recent efforts along these lines - most notably Al Gore's Reinventing Government initiative in the 1990s, with which I was involved. But none proposed the one measure that would force legislatures to confront tough trade-offs: giving every law an expiration date.

The failure of American government has almost no connection to what either party talks about or plans for the future. It is institutionalized in a giant legal heap that precludes anyone, including the president, from making sensible choices.

Americans know that the government is broken. According to a recent Clarus Research Group poll, 80 percent agree with that conclusion. By the same overwhelming majority, Americans also agree that the government "needs a basic overhaul" and should undertake "an annual 'spring cleaning' to eliminate unnecessary regulations and red tape."

Our founders never intended democracy to be a one-way ratchet, making laws but almost never unmaking them. Thomas Jefferson famously advocated small revolutions from time to time, believing that they are "as necessary in the political world as storms in the physical. . . . It is a medicine necessary for the sound health of government." This is the medicine that America very much needs today.

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