Opinion– America is mired in a tarpit of accumulated law. Reformers propose new laws to fix health care, schools, and the regulatory system, but almost never suggest cleaning out the legal swamp these institutions operate in. These complex legal tangles not only set goals but allocate resources and dictate the minutest details of how to meet those goals. Most are obsolete in whole or part.
Nothing important can get fixed without remaking a coherent legal framework.
The flaw is not one that can be solved by deregulation. Almost no one, for example, would disagree about the need to provide education for disabled children. But special education law, enacted in 1975, was structured as an open-ended mandate, and soon spun out of control. Today, special ed consumes 20 percent of the total K-12 budget in America. Programs for gifted children get less than half of one percent, and pre-K education gets almost nothing. Is this a sensible allocation of education dollars? No one is even asking the question.
Congress treats most laws as if they were the Ten Commandments – except they’re more like the 10 million commandments. Most legislative programs do not codify timeless principles of right and wrong. They are tools of social management. These laws allocate social resources – almost 70 percent of federal revenue in 2010 was consumed by three entitlement programs enacted a half century or more ago. Congress almost never goes back to rationalize these programs. Running government today is like trying to run a business using every idea every manager ever had.
At this point, democracy is basically run by dead people. We elect new representatives, but society is run by policy ideas and political deals from decades ago. Congress has a tragic misconception of its responsibility: It sees itself as a body that makes new law, not one that makes sense of old laws.
The problem of obsolete law is not theoretical. It’s concrete, affecting daily choices across the country. It adds to cost, and slows productive activity to a crawl.
There are four problems caused by the accumulation of old law:
1. Too much law causes paralysis. Over the past century laws have piled up, like sediment in the harbor, until it’s almost impossible to do anything sensibly. Building a “green infrastructure,” for example, is stymied by environmental processes that sometimes consume upwards of a decade.
2. Laws have unintended consequences. Things never work out as planned. Sometimes a well-meaning idea, such as special education, ends up undermining other important goals.
3. Priorities change. The more specific a law, the faster it becomes obsolete. In the 1930s, when many farmers were struggling, Congress enacted farm subsidies. The crisis ended by 1941. Now, 70 years later, farm prices are at record highs, and much of farming is done by corporations. But the farm subsidies continue – $15 billion in 2010.
4. Legal accretion is not coherent. The goal of law is to provide a framework for a free society. The idea of legal “codes” – such as the Uniform Commercial Code – is to provide uniform standards by which people can organize their activities. Federal law attempts no such coherence: The Government Accountability Office found 82 separate programs for teacher quality. The fact that the laws are generally well-intentioned cannot disguise the unavoidable resemblance to a huge legal junkyard.
Fixing what ails America is impossible, indeed illegal, without a legal spring cleaning. The goal is not mainly to “deregulate” but to restate programs in light of current needs and priorities.
As a practical matter, this requires Congress to authorize special commissions to make proposals, area by area. Using the base closing commission model, these proposals would be submitted to Congress for an up or down vote. Going forward, Congress should incorporate sunset provisions in all laws with budgetary impact. The goal is not to end good programs but to impose a discipline that is essential for a functioning democracy that must constantly make tough tradeoffs.
Accumulated law is not a problem our founders anticipated. They made it hard to enact new laws, thinking they would thereby protect the open field of freedom against too much legal interference. But 200 years later, the land of the free is a legal swamp. It’s hard to dredge, because those same checks and balances apply to repealing a law, with one additional impediment. Once a law is enacted, it is immediately surrounded by anarmy of special interests. Not one word can be changed until a majority of Congress has run a gauntlet of special interests, flogging each member with campaign funding. That’s why changing old law is so politically difficult as to be unthinkable.
“The difficulty lies not in the new ideas,” John Maynard Keynes observed, “but in escaping from the old ones.” American government is trapped in structures of its own making. The essential first step in rescuing America is a spring cleaning. It’s hard to fix things until we can make fresh choices.
Philip K. Howard is a lawyer, author and chair of Common Good. He is the author, most recently, of Life Without Lawyers: Restoring Responsibility in America, and wrote the introduction to Al Gore’s Common Sense Government. This article originally appeared on TheAtlantic.com.
Why the ‘Land of the Free’ Is a Legal Swampland
Philip K. Howard
March 12, 2012