Philip K. Howard is one of the most interesting political thinkers in the country. He advocates radical change, but he’s completely non-partisan. Now in his 70s, Howard has been involved in public affairs, mostly in New York City, since he was in his 20s. He served on a zoning board and an art association, he was part of the successful effort to save Grand Central Station from demolition, and he was involved with the group No Labels, and the group Common Good. When he was in his 40s, he became nationally known, and since then, he’s been involved in public affairs on the national level.
Howard is descended from a signer of the Declaration of Independence (Josiah Bartlett). Perhaps Howard feels a certain noblesse oblige, perhaps he feels that he has a stake in society, and an obligation to society. He complains that many Americans today don’t have this feeling; they try to get as much as they can from society, they don’t feel an obligation to society.
Howard is a lawyer by training and by trade. He’s interested in how law affects behavior. He argues that our current legal system stifles action, and prevents a civic-minded person from carrying out reforms. If, for example, someone tried to set up public bathrooms in New York City, he would encounter various obstacles that wouldn’t have been encountered a generation ago. Imagine the difficulty of building a highway today!
Howard has tried to streamline the process of getting permits for highways and other infrastructure projects. If this process isn’t streamlined, the government can allocate $500 billion for infrastructure, but the work won’t start for several years. Obama wanted to spend money on “shovel-ready projects,” but he found that there were no shovel-ready projects, all infrastructure projects needed years to get environmental approvals, to deal with court challenges, etc.
I discussed Howard in this e-zine 6 years ago, and my book group read his first book 25 years ago (his first book was called The Death of Common Sense: How Law is Suffocating America). In the 1990s, Howard worked with Al Gore on government reform; Howard says that some of Gore’s ideas were “fantastic,” but Gore wasn’t willing to take on unions, so his ideas didn’t bear fruit. Howard is now registered Independent (he’s not a Democrat or a Republican), but in a 2009 interview, he describes himself as a Democrat and an Obama fan.
Howard insists that we must give elected officials authority, we must allow them to assert their values and carry out reforms. Then we can hold them accountable at the polls. There must be authority before there can be freedom; authority is a prerequisite to freedom, and a prerequisite to the functioning of government. Americans tend to mistrust authority, so we constrain elected officials (as Tocqueville said, Americans “consider all authority with a discontented eye”). One might say that The Howard Equation is
Authority + Accountability = Good Government
People can’t take bold action because they’re fettered by rule books that run to 1,000 pages, they’re fettered by fear of lawsuits. We force people to follow elaborate rules and procedures, hoping to squeeze out human error and human bias. The result is paralysis — a school principal who can’t fire a teacher, a teacher who can’t suspend an unruly student, etc. Howard says we must re-humanize law, let people be themselves, give people authority, then hold them accountable.1
Howard’s favorite quotation is from Thomas Edison: “Hell, we ain’t got no rules here, we’re trying to accomplish something.” Howard’s favorite anecdote is the 5-inch fishing lure with 3 hooks, and the inscription “Harmful if swallowed.” Howard says that a Florida county banned running at recess!
Fifty years ago, if a child broke a leg on a see-saw, no one would think of suing. Later, people sued for $1 million. When they realized that $1 million was possible, they started to sue for $5 million, then $10 million. No one drew a line, no one stood up for the public, for the common good.
See-saws were banned because lawsuits were expensive and time-consuming, regardless of the outcome of the suit. We need to define Reasonable Risk, Howard says; we can’t eliminate all risk, and compensate all injuries. If a see-saw is a Reasonable Risk, people shouldn’t be able to sue for a see-saw injury. The purpose of law is to create a space for free action, not to stifle action and eliminate risk. There must be boundaries for lawsuits; what people can sue for establishes the boundary of everyone else’s freedom.
If people can sue for anything, then everything is illegal. For example, if a teacher can be sued for physically removing a child from class, then it becomes illegal for teachers to touch students. Howard tells how, when a 5-year-old student misbehaved, police had to be called and the student was handcuffed.
Tort reform often focuses on the size of awards. But it’s more important, Howard argues, to set boundaries on suits, rather than boundaries on awards. People shouldn’t be able to sue for anything, shouldn’t be able to sue anytime something goes wrong. If a parent can sue when their child is injured on a see-saw, that will harm playgrounds for all youngsters, even if the award from a successful suit is limited.
People need to be able to act spontaneously, act from instinct, not conscious thought. Laws should be simple and brief, so they can be internalized. “The systems we’ve created since the 1960s are anti-human, they cause failure and frustration, they lead to extremism.” In my view, these systems are based on a philosophical mistake, an excessive respect for reason.
Howard proposes a far-reaching “recodification” of American law. Such a reform would be impossible in Congress, so Congress should appoint a small committee of experts, such as the committee that created the Uniform Commercial Code in the 1950s. Howard is doubtless aware of the legal reforms carried out in ancient times by Justinian, etc.
Howard recently published a book called Not Accountable: Rethinking the Constitutionality of Public Employee Unions. Howard says that elected officials are rendered impotent by the power of public-employee unions. For example, if the mayor of New York City wants to try a new policing strategy, or buy new history textbooks for middle schools, he needs the approval of the police union or the teachers union. Unions often have veto power over public policy.
Howard believes that the Founders wanted power in the hands of elected officials, officials who were accountable to voters; the Founders wouldn’t have wanted power in the hands of unelected, unaccountable union bosses. Even FDR, who was a strong supporter of labor unions, was opposed to public-employee unions.
When elected officials don’t have power, “democracy is just a kind of charade, electing figureheads who don’t have authority to run things.” At the time of the Founding, Madison said that the one thing we can’t tolerate in this new state is governing authority in the hands of people who aren’t accountable to voters; all grades of workers must answer to the elected executive.
Howard thinks that public-employee unions are unconstitutional, and he’s trying to bring a case that makes that argument (perhaps bring a case to the Supreme Court). If judicial reform fails, perhaps political reform is possible; Scott Walker, former Republican Governor of Wisconsin, managed to reduce the power of public-employee unions. Howard says that Walker’s reforms saved Wisconsin taxpayers “billions [of dollars] per year,” while improving government services. Howard says that, after Walker left, even Democratic politicians were happy with Walker’s reforms and didn’t try to reverse them, but they couldn’t defend Walker publicly lest they offend unions. A Democratic politician who offends unions is soon turned out of office.2
The new Democratic mayor of Chicago (Brandon Johnson) is a former teacher, and his campaign received over 90% of its funding from teachers unions and other public-employee unions; only the police union supported his opponent. “The race comes down to this: Public employees vs. everyone else plus cops.”3
When teachers unions are powerful, bad teachers can’t be fired; there’s no accountability, no punishment for poor performance. A teacher who’s imprisoned for selling drugs is reinstated in his teaching job as soon as he’s released from prison. The school principal has little power; any reform effort is subject to the veto of union bosses. Bad schools can’t be closed, new charter schools can’t be opened, students are trapped, taxpayers are forced to pay for an expensive system that doesn’t work.
Education becomes nearly impossible. “In 37 of [Chicago’s] schools, not one student is proficient in reading or math.” Teachers struggle to maintain order. An unruly student can’t be suspended unless the teacher goes through a long process (a 60-step process). If a student or parent can make a credible threat to sue, the principal appeases him since the principal doesn’t want to go through a lawsuit.
“Teachers unions always want more,” Howard says. “They’re not for better schools, they’re for themselves.... After 50 years of accumulated union demands, many schools are unmanageable.” Howard says that, during the pandemic, teachers unions were “unbelievably selfish,” and kept schools closed for two years, thereby inflicting lasting harm on students.
Randi Weingarten, the leader of a large teachers union, visited Ukraine, as if she were a political leader. And she is a political leader, an unelected leader. She’s not accountable to the people, she’s only accountable to an interest group. Political leaders should represent the common good, not the good of a particular group or interest. Is the U.S. dissolving into a collection of special interests and minority groups? Are we losing the common bond, the sense of one nation, one interest?
Not only politicians, but also courts should think about the common good. When the interviewer says to Howard, “courts are there for those minority rights,” Howard responds, “I disagree with that, courts are there to draw the norms of society.” Courts should protect minorities, but also protect the rest of society; courts must balance the rights of the few with the interests of the many. The rights of individuals shouldn’t be absolute. As Frankfurter said, we should do “substantive justice both to public and private interests.”
We need to be more goal-oriented, instead of rights-oriented. We need to ask, What freedom does a teacher (or a principal) need in order to do his job effectively? We need to focus on the goal of the institution, rather than the rights of individual students.
Howard doesn’t say this, but the problem of public-employee unions was started by Democrats, is perpetuated by Democrats, and will only be solved by a Republican Supreme Court, or Republican governors. JFK received crucial support from unions, so he rewarded them by allowing some federal workers to engage in collective bargaining; JFK crossed the line that FDR had drawn (the line between labor unions and public-employee unions). Soon New York State followed this precedent, and allowed some public employees to unionize. Before the end of the 1960s, public-employee unions had sprung up in some twenty states.
Labor unions were needed, Howard says, because workers were dying in mines and factories. But public-employee unions weren’t needed, teachers and firemen and bureaucrats weren’t being abused. Federal workers were already protected by the civil-service system.4
Democrats enhanced union power, unions delivered votes for Democrats, the public suffered. “Trash collection in New York City costs twice what private carters charge. Same in Chicago.... Public bargaining became collusive. The unions brag about it: ‘We elect our own bosses.’”5 Democrats focus on special interests and minority interests; Republicans think about the national interest, at least some of the time.
Benefits for unions were costs to society, but society wasn’t represented at the negotiating table. Unions sought goodies for themselves, and politicians sought votes from unions; the common good was ignored. “Public employees have a fiduciary duty to serve the public and should not be allowed to organize politically to harm the public.”6
Democratic politicians are not only allied with unions, they’re also allied with trial lawyers. Howard worked with the Harvard School of Public Health to create “health courts,” courts that would streamline malpractice cases. Obama supported this idea, but Harry Reid nixed it, at the behest of trial lawyers.
Perhaps the root of the problem is that we’re an affluent society, and we feel that we can afford to pass out goodies to various groups, instead of focusing on the common good. Perhaps the only thing that can change this mindset is a severe crisis.
In the old days, Howard says, American politicians would fight in the political arena, then have dinner with their opponents, and talk about how to solve the problem. They had a common bond, they felt they were both Americans. But nowadays they don’t have dinner with their opponents, they’re more partisan. They “don’t get together [Howard says] unless it’s an extreme crisis and I’m not even sure we’re there yet.”
Do things need to get worse before they can get better? Does the nation need to decline much further before Americans stop focusing on subsets of society? Will it be too late then to right the ship?
Why did Trump keep classified documents at his Florida home? Timothy Snyder says, “To feel important. To pretend to be the president. And to have something to sell when the other scams failed.” Trump knew that classified documents were sometimes very valuable, sometimes worth $1 billion per page to the Russians or the Chinese or the Iranians. He wanted the most valuable documents, the most closely-held secrets. Trump has a cavalier attitude toward national security — indeed, he has a cavalier attitude toward everything.
I think Snyder’s analysis is sound, except for his phrase “the other scams.” This implies that all of Trump’s business activities are scams, but in fact Trump has real businesses — hotels, golf courses, etc. Trump’s business empire isn’t a complete scam.
If you want to see a complete scam, look at the Biden family. They go around the world collecting pay-offs, selling influence. They don’t have a business, it’s a pure scam. Insofar as the Justice Department and the IRS don’t investigate the Bidens aggressively, Trump supporters are justified in thinking that the indictment of Trump was politically motivated.
© L. James Hammond 2023
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| Footnotes | |
| 1. | The problem started in the Progressive Era, and became much worse in the 1960s. Progressives wanted “neutral” administration. Howard published an article in the Yale Law Journal describing how neutral public administration evolved into public paralysis. Here’s an abstract of Howard’s article: “The Progressive Movement succeeded in replacing laissez-faire with public oversight of safety and markets. But its vision of neutral administration, in which officials in lab coats mechanically applied law, never reflected the realities and political tradeoffs in most public choices. The crisis of public trust in the 1960s spawned a radical transformation of government operating systems to finally achieve a neutral public administration, without official bias or error. Laws and regulations would not only set public goals but also dictate precisely how to implement them. The constitutional protections of due process were expanded to allow disappointed citizens, employees, and students to challenge official decisions, even managerial choices, and put officials to the proof. The result, after fifty years, is public paralysis. In an effort to avoid bad public choices, the operating system precludes good public choices. It must be rebuilt to honor human agency and reinvigorate democratic choices.” As Progressives wanted neutral administration, so reformers in the 1960s wanted neutral judges. The Legal Process Movement encouraged judges to be neutral. Howard says that regulatory law is about 150 million words, just for federal regulations. “A report by the New York Times found... that a family-owned apple orchard was subject to 5,000 rules from seventeen different regulatory programs. The regulatory programs are aimed at valid public goals, such as making sure apples are clean. However, most rules specify exactly how to achieve the goals. One regulation, for example, requires covering the cart of picked apples with a cloth to protect against bird droppings. This level of granularity is hard to keep track of — the farmers have thirteen clipboards hanging in their office.... The apples in the cart... have been growing on the trees for five months, fully exposed to birds. A few minutes more on the trip to the barn is unlikely to advance public welfare.” When we try to replace authority with rules, freedom is eroded. “Whether or not rules make sense, the farmer must cover the applecart and comply with thousands of other rules. The breakdown of discipline in schools, correlated directly with the rise of regulations designed to satisfy due process, compromises the ability of students to learn.”
The modern bureaucratic state prescribes correct conduct, and thereby stifles freedom. Howard says that law shouldn’t prescribe correct conduct, it should prohibit misconduct, and create a field of freedom. “Think of law as a corral surrounding the field of freedom. The legal fence protects against outside misconduct and defines the open field within which people can act freely without being unduly fearful or defensive.”(Yale Law Journal) back |
| 2. | In what way do public-employee unions violate the Constitution? Howard says that Article II of the Constitution, as interpreted by SupremeCourt rulings, says that Congress can’t take away executive power, including the power to dismiss people. In other words, executive power can’t be taken from the President, and given to union bosses.
What about state and local governments? Article IV guarantees a “republican form of government” to states (this is called The Guarantee Clause). A republican government is one in which voters elect an official, and that official has authority to run government. According to Howard, public-employee unions are preventing elected officials from running government, and thereby violate The Guarantee Clause.
But there’s a problem with Article IV. Supreme Court cases have ruled that Article IV can’t be adjudicated, it must be managed through the political process. This is an obstacle that Howard will need to overcome; he’ll need to persuade courts that Article IV should be adjudicated. back |
| 3. | This quote is probably from Howard’s interview on the C-SPAN show “Q & A.”
Howard says it’s almost impossible to fire a tenured teacher; as one school superintendent put it, “‘dismissing a tenured teacher is not a process, it’s a career.’ California is able to dismiss for poor performance only two out of almost 300,000 teachers per year. Public employees answer to no one.” back |
| 4. | A letter in the Wall Street Journal asks, “Why should 2.2 million federal workers enjoy both robust civil-service job protection and union representation? No wonder why, according to the CBO, federal salaries are 16% higher and employee benefits 48% higher than their private-sector counterparts.... This dual protection is a colossal taxpayer rip-off.” back |
| 5. | The first half of this quotation comes from Q & A, the second half from Amazon.
The easiest way for Democratic politicians to pay off unions was to give them pension benefits, which didn’t take effect until later on. Some unions had pension liabilities that they couldn’t afford to pay. Biden used taxpayer money to bail out union pension funds — another example of Democratic politicians helping unions at the expense of the public. back |
| 6. | See the summary of Howard’s Not Accountable on Amazon.
Does Howard’s analysis apply only to big cities, or does it apply to average towns? Are unions more powerful in big cities? In affluent towns, teachers unions seem to be strong. A majority of the townspeople are interested in education, and are able to pay high taxes, especially when property taxes are a deduction on income taxes. In affluent towns, people who aren’t able to pay high taxes move out of town. In less affluent towns, teachers unions seem to be more moderate in their demands, and taxes are lower. back |