How To Make Government Work Again

Philip Howard thinks the Supreme Court might buy his argument and invalidate all public sector collective bargaining agreements. That would be huge.

In the first two years of his presidency, Joe Biden added trillions in public investment. Most of it — like tax credits for clean energy — requires no additional bureaucracy. But much of it will stress the federal, state and local agencies assigned to administer the new spending without wasting money. As the pig moves through the python, I asked Philip K. Howard — whom I first met in the 1980s — to ruminate about his provocative views on public policy. Phil is a New York lawyer, author and original thinker whose new book, Not Accountable: Rethinking the Constitutionality of Public Employee Unions, is making waves. We talk here about how to make government work better in the face of entrenched interest groups, especially teachers unions and other government employee unions. You may not agree with all of Phil’s policy prescriptions (I don’t), but his provocative take might just change how you view government.

JONATHAN ALTER: 

Your book The Death of Common Sense was very influential within the Clinton Administration. How successful was Al Gore’s “Reinventing Government” initiative in the ‘90s?

PHILIP K. HOWARD:

Al Gore is an extremely unusual person. He might be overly-earnest but he has unbelievable policy instincts. He saw quite clearly that the “legacy bureaucracies” had piled up like sediment and needed to be cleaned up, not necessarily gotten rid of altogether. He had a prescient sense that regulation would work better if it were goal-oriented rather than compliance-oriented. That was the import of my book, and we found common cause on that. He got rid of petty procurement procedures, so that [government employees] could go to a local Staples and buy their office supplies instead of buying them for five times the price via some formal procurement process. It was a noble effort but he didn't go nearly far enough in re-empowering officials.

Philip K. Howard

JON:

Did you ever try to talk to Gore about firing poor performers in the civil service?

PHILIP K. HOWARD:

It’s a little bigger than that. Accountability also involves reassigning and redeploying resources, all kinds of things short of firing. To clean out legacy bureaucracy you’ve got to create goal-oriented structures. There are vested interests — not only of officials within government, but also of people who take advantage of those rules. A whole industry of companies exists that do nothing but government procurement, because they know how to game that complex system. They charge the government twice as much for an IT system as you would in the private sector. They all have lobbyists, and they get in the way of changes.

[Under Gore], an OSHA pilot program resulted in better safety in factories because instead of a gotcha compliance-based thing, it was “come up with your own safety program.” There are a number of examples like that, but they didn't end up becoming institutionalized. That’s because he didn't ultimately get to change the governing philosophy of post-‘60s government, which is very process-oriented and rule-oriented. For instance, we still have 10-year processes for environmental review, which prevents power lines from being built.

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JON:

How would you rate how the government and government bureaucracies are working now?

PHILIP K. HOWARD:

If you gave a report card to the government today on the effectiveness of public operations, it would not get a high mark, in part because of unions, also because of the limited impact of these new goal-oriented ideas. Good leaders in smaller jurisdictions have had successes; the smaller the jurisdiction, the greater likelihood of success, because people know each other and there's more of a basis of mutual trust. So, there have been improvements, but inner-city schools are still lousy. Police systems are still toxic. The federal government is still chock full of job-training programs that don't train anybody. 

Both parties lack a vision for what good government means. Democrats have policies on dealing with climate change but they don't really have a vision for how to make government work better, in part because they're in the pocket of unions. Republicans have just been railing against the Democrats and running against government.

JON:

After The Death of Common Sense, you wrote a sequel, Try Common Sense. Has there been a revival of common sense? Is the problem worse than it was 30 years ago or about the same?

PHILIP K. HOWARD:

The problem is worse. What I meant by Common Sense was not a normative judgment of what's right or wrong, but empowering people to use their common sense to judge what's right and wrong. For the teacher, for instance, to have the authority to maintain order in the classroom. With the micromanagement state we’ve tried to create since the ‘60s, we’ve wanted to [make rules] so the government is better than people. But it doesn't work. You have to make choices. You have to balance. You have to compromise. We’re so accustomed to failure that it breeds extremist solutions: defund the police; get rid of the government. What we need is to give back to people the ability to roll up their sleeves and try to make schools work, to instill new values in a police force backed up by the real accountability you get when you get rid of a bad cop. It requires a new kind of governing, a new operating vision. If you ask me who in the political landscape is sympathetic to this, I couldn't point to anyone. We live under a system that's designed for failure. People just take turns failing.

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“We live under a system that's designed for failure. People just take turns failing.”

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JON:

Aren't there younger politicians who get it? I’m impressed by some of the younger Democrats. They're smart, they're not that ideological. They're interested in solutions. I'm not talking about the far-left ones. I had lunch a couple of weeks ago with Sen. Sheldon Whitehouse (D-RI). I thought he made a lot of sense, you know?

PHILIP K. HOWARD:

He seems like a very practical guy. I was trained as an economist. I look at systems as microeconomics.  What's  the framework that provides incentives for people to do the right thing? People like [Commerce Secretary] Gina Raimondo and [Transportation Secretary] Pete Buttigieg have that sense, too. 

JON:

You're a lawyer, too, but you basically agree with Shakespeare: first, let's kill all the lawyers. How would you summarize the way lawyers contribute to the problems you've just outlined?

PHILIP K. HOWARD:

Lawyers come up with legal procedures to try to guarantee fairness. Let’s take one really simple example: If you want a healthy workplace, you can't allow [employees] who feel offended to bring a legal claim. You can't allow somebody to sue just because they got a bad job evaluation. If you do allow it,  the effect will be that no one, in order to avoid the risk of the legal proceeding, will give an honest job reference — which, by the way, is true in America. The same thing has happened to child's play. If with every accident, there's a potential for a lawsuit, they're going to get rid of everything children love best — merry-go-rounds, see-saws. And there's a lot of literature on why letting children take moderate risks is actually really important to their growing up.

JON:

Has there been any change? Thirty or forty years ago, I was writing articles for the Washington Monthly about the rise of arbitration, which now has its own abuses. Have we seen any pullback in the last few decades from this litigation-crazed society?

PHILIP K. HOWARD:

Well, it's almost a litigation-fearful society. We’ve become more stupid as a society. We think if only we talk about fairness enough there's some utopia where everyone will have their rights honored, and everyone will be happy, and everyone will feel safe. And there'll never be another accident. My book, Life Without Lawyers, was not about getting rid of all attorneys; it was about getting rid of law in daily choices. So I have a chapter on children's risk, one on candor in the workplace, one on getting bureaucracy out of schools and so on. The lawyers in charge of Congress have created these systems, where people had to worry about law instead of just living their lives. People just living their lives shouldn't have to worry so much about the law.

JON:

Can’t we continue to have a rights-based society as long as we don't define rights too broadly? I mean, you’re never going to pull rights root and branch from the American system because it's just so embedded. But you can stop defining rights in a stupid way. My readers are probably tired of this quote from Wesleyan President Michael Roth because I use it so much, but it’s relevant: “Nowhere in the Bill of Rights is there a right not to be offended.” He’s basically saying that these claimants we are talking about have no standing.

PHILIP K. HOWARD:

Hannah Arendt talked about this too. She said the simultaneous recession of freedom and authority is no coincidence. 

JON:

What did she mean by that?

PHILIP K. HOWARD:

That if you take away authority, you're also going to take away freedom. So if the university president doesn't assert authority to maintain standards of civil discourse, then everyone will lose their freedom to say what they really think. People will be muted, which is what's happened on campuses. If the teacher doesn’t have authority to maintain order in the classroom, then the freedom of all the kids who want to learn is compromised. One kid destroys it. Freedom in any organizational context requires the institution to enforce the outer boundaries of what values are acceptable. That doesn’t mean telling people exactly what they have to do, but it does mean telling them that they can't interfere with others. You can't scream over speakers. I'm speaking at Yale Law School next week. What are the odds that I'm gonna get shouted down? [It turns out he wasn’t].

JON:

I interviewed a Carleton College professor last week who made a number of really good points about the commercialization of higher ed. She made me re-think my opposition to unions on campus by stressing that you cannot protect faculty from weak administrators, what she calls “DEI Inc.,” and militant students without unions. But at state colleges, these are usually government-employee unions. FDR, as you've pointed out, was against them. It’s a little-known fact that this country didn’t even have government employee unions in most places until the 1960s. What is your critique of them?

PHILIP K. HOWARD:

They’ve created a situation in which the people with the constitutional responsibility to manage governance no longer have the authority to do so. They've eliminated accountability. We're talking about termination for performance being on the order of 01.–.02 percent in most levels of government. It's basically impossible — because of the procedures and the burden of proof — to fire anyone. The cocaine dealer teacher is convicted and ordered to be reinstated when he comes back from jail. 

JON:

When I first moved to Montclair, New Jersey nearly thirty years ago, we had a case like that in one of our schools. A teacher kept cocaine in a lipstick holder in the classroom, which a student found, and she was eventually reinstated, though counseled out.

PHILIP K. HOWARD:

There’s zero accountability. And the problem with zero accountability is not that there are legions of bad public employees. But if performance doesn't matter, it's really hard to have an energetic, productive culture in the school, or in the police force, or wherever. It's like letting the air out. Why would you go the extra mile and stick up for what's right if you know other people aren't? It’s Organizational Psychology 101.

In one of his reports on rebuilding civil service, former Federal Reserve chair Paul Volcker talked about how discouraging it was for public servants to see others who weren't doing their jobs. It's important for people to feel that if someone doesn't do their share, they will be held accountable. Then, to compound the problem, there are hundreds of pages of work rules. Contracts for public employees and collective bargaining agreements are designed to be inefficient. They're designed to disempower supervisors. The principal can only spend so many minutes a month with a teacher. The principal can't come in and observe the teacher, except under limited circumstances.

JON:

Do they still have these really thick collective bargaining agreements in school systems all over the country? Has there been any progress in moving toward thinner contracts?

PHILIP K. HOWARD:

The typical union collective bargaining agreement is about 200 pages. That's how big the Memphis police union contract is, and it’s likely that's how big your city contract is [in Montclair]. They essentially eviscerate the key management tools. So let’s look at the pandemic. Will you do distance learning? No, our contract says nothing about distance teaching. It’s got to be renegotiated. You move your office in the federal government, you have to negotiate with the union rep. Who sits at what desk? That's a matter of negotiation.

JON:

Did COVID change any of that? People — including many liberals — got so mad about the way the schools were responding to COVID and how long it took them to reopen. A lot of them blame the unions. 

PHILIP K. HOWARD:

It didn't. It's truly this sense of entitlement and the real political power unions have. Illinois just passed a constitutional amendment that provides for collective bargaining agreements free of any contrary provisions in past or future statutes. Think about that. The potential for overreach is truly unlimited. They are the power and they say so — you can't do anything in government without our approval. Nothing out of the ordinary, no adaptation to new circumstances. Any problem of resource allocation has to be negotiated. You want to talk to an employee about how to do things better? That's illegal under the contract. You have to deal directly with the union rep. This system is designed for control for its own sake.

Because there's only so much money they can get out of the system, they negotiate these back-loaded pensions. [Putting the burden on taxpayers down the road]. A lot of public workers are actually underpaid, but what they can get are controls. And the controls create toxic work environments; you would never get work done if you ever went to work at any of these places.

JON:

What happens when you combine that with the return to New Deal–style public investment under Obama and Biden?

PHILIP K. HOWARD:

Some politicians are really good with people but don't have a great sense of policy. Now, Barack Obama is someone I admire. But when they had all that money for infrastructure in 2009, he said, “Well, there's no such thing as a shovel-ready project.” What FDR and Harry Hopkins would have done was say: Give me the authority to streamline approvals so we can spend this money. They would have been goal-oriented, but Obama didn't think that way. And I fear that Biden's a little bit that way too. 

JON:

When he was president-elect, in order to get out of that deep recession, Obama pushed hard on rebuilding the electricity grid. And he was presented with objection after objection. NIMBY, overlapping state and local jurisdictions etc.  As I explain in The Promise, my book about his first year, it was really frustrating for him. 

But there was a lot of lazy-minded use of the bankruptcy of Solyndra to illustrate how Obama supposedly messed up in this period. If you look at the Department of Energy loan guarantee program that funded Solyndra, the overall program actually made money for the federal government. It was a success, yet Obama's enemies were able to make it sound like a scandal.

Now, this is an area where Biden actually has some relevant experience. In 2009–2010, Obama appointed Biden to be in charge of how the stimulus money was spent. Biden hired this kick-ass auditor with great experience. They created a sophisticated dashboard, a really smart oversight process. And that $787 billion was spent over the next few years with no scandals. They did what Roosevelt could not do in the era of what were called “boondoggles”: they figured out how to protect themselves from scandals.

PHILIP K. HOWARD:

I'm a big believer in moral authority. If I were in charge, I would have a group of retired business leaders whose job was to oversee, who would help make judgments about how to do the contracts. People really underestimate the importance in the governance system of having some form of cover. 

JON:

Re your new book: What’s wrong with collective bargaining agreements in the public sector? (We agree they are necessary in the private sector). You argue in the book that public sector CBAs are actually unconstitutional. Why? Given the Supreme Court’s makeup, is there a chance we could have a landmark decision declaring them unconstitutional? That would be huge — a Dobbs-level decision.

PHILIP K. HOWARD:

There's a first principle of constitutional governance that officials cannot delegate governing power to any private group. This comes from John Locke's Second Treatise on Government. In our system, governing is [essentially] a trust given by the people to officials. They can't in turn give it or sell it to a friend [outside the government]; they must retain that authority. That principle is codified in a couple of places in the U.S. Constitution. One of them is called the Guarantee Clause, which says that the "United States shall guarantee to every state in this Union a Republican Form of Government." They can organize themselves in different ways, but what they can't do is create a system of government where elected officials give some of their authority to aristocrats or another favored class to govern.

What's happened in the United States is that the unions get politicians elected [with their donations and political work], and then they sit on the same side of the table and say, “What are you going to give me?” It's very different from private sector bargaining. Through collusive bargaining, government employee unions have gotten more and more controls, to the point that government is effectively unmanageable. You can't hold anybody accountable. You can’t control the budget. And you can't adapt day to day. So elected officials — including elected governors and mayors — have largely become figureheads. 

I think the current Supreme Court would be very sympathetic to this argument. In the recent Janus decision, which held that public employees who are not members of the unions can't be compelled to pay agency fees, the holding was "that's forced speech which violates the First Amendment." But most of the Court's opinion had nothing to do with the First Amendment. It has to do with the unmanageability of government under unions.

JON:

Thanks, Phil.