Rules Not Virtue

When a winter storm in 2011 sent a tree crashing into a creek in a town in New Jersey, officials acted quickly to remove it and stem the flooding—until a man (“probably the town lawyer”) apprised them that a “class C-1 creek” could not be altered without a formal approval process. After twelve days and $12,000, they secured a permit to do what they wanted to do the moment they noticed the calamity.

This is the first idiotic episode in The Rule of Nobody, Philip K. Howard’s brisk tract on how rules, regulations, laws, and bureaucracy are strangling common sense and responsible behavior in America. He terms it a “progressive disease,” an accumulation of red tape, g­overnment review, environmental assessment, thousand-page legislations, inspections, codes, and licenses that produces “bureaucratic overkill” and saps innovation, know-how, and plain practicality. The system wears people down, Howard writes, burdening citizens with microscopic and irrelevant restrictions that would outrage them if they were not so commonplace.

A soup kitchen in New Jersey had for twenty-six years served the poor and elderly three hundred meals per day until the health department stopped it. Meals were made by nearby churchgoers in their own homes, you see, and state law requires that every preparation site be examined, and the department didn’t have time to cover every kitchen. Opening a restaurant in New York City can necessitate a permit from eleven different agencies. Every public school in the city must follow “literally thousands of rules, emanating from every level of government. . . . Disciplining a student potentially requires sixty-six separate steps.” The system passed the point of absurdity long ago. When in 2011 the state of Colorado developed rules for day-care centers, it even addressed building blocks: “at least two (2) sets of blocks with a minimum of ten (10) blocks per set . . . space with a flat building surface shall be available . . . not in the main traffic area.”

The natural targets for exasperation are the public officials who implement those killing minutiae, but the officials suffer, too, Howard says. They know how inapt the rules can be, but they can’t break them without jeopardizing their jobs, so they turn into obtuse robots. Yes, they are sometimes corrupt or dictatorial, but much more frequently they endure the system as a straitjacket that thwarts the exercise of sensible judgment. Instead of empowering the government worker, the system takes away his discretion.

That’s the key to the whole thing: individual human will. The standard polarity of big government vs. small government misses the point, Howard argues; instead, we should contrast effective to ineffective government, with effectiveness resting precisely on the power of officials high and low to make decisions on their own. The state has spread less through ­seizures of ­private resources than it has through micromanaging laws that disable its own workers along with everyone else.

A deep fear underlies this strange treatment. If we allow individuals any latitude, something may go wrong. If we don’t spell out in scrupulous detail the rules for nursing homes, for instance, exactly when patients should eat and sleep, an abuse might happen. Someone, somewhere, once freed a creek of blockage and ­damaged the bank, and so from then on no efforts by anyone anywhere may proceed until properly authorized. The rules subdivide and proliferate in order to cover all circumstances, and government handles their variety not by giving officials the freedom to adapt, but by conceiving more rules, more procedures. Hence, the Rule of ­Nobody.

The language of the system deadens the spirit. For instance, take these nursing-home regulations in Kansas:

Windowsill height shall not exceed three feet above the floor for at least 1/2 of the total window area.

Wastebaskets shall be located at all lavatories.

All eggs shall be cooked.

But a grand utopian impulse underlies them: the dream of life sheltered from catastrophe. Onerous applications for building permits slow and complicate every project no matter how careful and virtuous it is, but they also prevent the rare abomination. A plodding, ten-step process for firing an incompetent worker hampers productivity and lowers the morale of his ­coworkers, but we must stop the one in a hundred bosses who are tyrants.

The system also saves individuals from choice: “My fear is,” Howard writes, “that Americans are attracted to a society without responsibility.” The more rules there are, the fewer messy moral decisions and less personal accountability. If I want to do something on my property and a county inspector says, “No, that violates Section XX of the code,” well, at least it was the impersonal law that said so, not the whim of a guy I don’t even know.

Those all-too-human motives, however, leave us with a system of “dumb rules” and moral distortions. Character deteriorates even among the most powerful players. Here is Howard’s rendition of contact with public figures:

Meetings in Washington have an other-worldly quality. You meet with supposedly important people, who, instead of engaging in candid discussion, take notes and say something vapid like, “Thank you for explaining this to me.” You know there are wheels turning inside them, but you have no idea of what direction. Everything is calculated, all artifice and posturing. It’s creepy, like dealing with drones and robots.

His antidote comes in a set of propositions that restore “human control” to democracy. They include independent commissions charged with eradicating silly rules from every agency, sunset provisions to eliminate obsolete laws, judges who shall dismiss ridiculous claims before they enter the system, and other sane ­reforms.

But after the litany of stupidities in this book, one has little faith in their viability. First of all, special interests are too strong, for instance, teachers’ unions that insist on ­labyrinthine contracts. Second, according to Howard, the 1960s produced a new attitude toward judgment (value judgments are dangerous, potentially racist, sexist, chauvinistic . . .) and toward law (it should keep officials from acting unfairly), and that attitude prevails today. The less we let judges be individuals, it says, the more just our society will be.

We might add another compelling support for the system, one that Howard doesn’t mention. It is the power of the extreme case, the example of the catastrophe. How can we resist a new parks and recreation law with pages of small-print trivia when it is backed by a child horribly injured while playing? The image of a bridge collapse in the newspaper compels politicians to legislate notwithstanding the rarity of the event. These cases are stark realizations of our worst fears, and the costs of guarding against them (money, jobs, postponements, common sense) don’t stop the system from trying to account for them. Unless Americans accept the fact of risk, unless they recognize the tragic nature of life whereby every excessive effort to preempt suffering creates another kind of suffering—until, that is, they acknowledge more fully the conditions of a fallen world—the system won’t contract.

Howard’s main prescription itself asks us to overlook the fallenness of human beings. The liberation of public officials he advocates runs from the DMV clerk up to the president of the United States, and he relies on review by other officials to keep them honest. But what oversight can operate at the top? We see right now a chief executive appointing czars, creating agencies independent of Congress, and modifying his own laws arbitrarily. The courts have struck down some of his recess appointments, and popular opinion runs against his signature initiatives, yet Obama’s ­administration presses ahead without pause.

Howard’s complaint is cogent, but his answers need refinement, specifically, a distinction between low-level officials who do, indeed, merit more discretion and high-level officials who will abuse it. Without that qualification, the rule-of-nobody state will end up restricting the freedom and common sense of most people, but not of elite figures inside and outside the government who can use the ­bureaucracy to cloak their ­decisions and remain accountable only to themselves.

Mark Bauerlein is professor of English at Emory University.