Overregulated America

The law—all 100 million words of it—stands between President Obama and his capacity to act. By Philip Howard; Remember the wonderful idea, not many weeks ago, of using stimulus money for a Green Revolution? Two birds with one stone: We could stimulate the economy and provide environmental leadership for the rest of the world. Transmission lines would carry energy from remote wind farms to our urban centers; transponders along arterial roads would allow “user charges” to discourage driving in peak times and eliminate traffic jams; and new mass transit would begin to provide commuting alternatives.

FDR couldn’t have built a stone wall in Yosemite, much less the dams of the TVA, under today’s legal regime.

This hopeful vision—shared by most Americans—then crashed into the massive barrier called federal law. Experts say it will take 10 years even to get started with a new transmission line. Mandated environmental reviews have evolved into multi-thousand page analyses of virtually every pebble that might be disturbed—followed by litigation in federal court by any person or group that doesn’t like the project. After (or if) that is completed, procurement laws require a multi-year process for any project of any size—followed by litigation “protests” by any losing contractor.

In the year 2020, after final approvals, work can begin. The project will cost 50% to 100% more than a comparable private project, however, because of a warehouse stuffed full of federal freebies designed to benefit one group or another. For example, the Davis-Bacon Act, signed into law by President Herbert Hoover in 1931, mandates wages that are, on average, about 25% higher than the market.

America has a crumbling, outdated infrastructure—and can’t fix it because America has a massive, outdated legal infrastructure. Decade after decade, Congress has poured layers of legal concrete onto the machinery of government. Almost never does it go back and clean out what doesn’t work or is no longer needed. The cost is not merely inefficiency. Officials no longer have the authority to try to meet our public goals.

President Obama can’t speed things up, or avoid waste, or do anything about all these regulatory barriers. The law of the land—all 100 million words of it—stands between him and his capacity to act.

It need not be this way. After the 1994 Northridge earthquake, which knocked down miles of freeways, California Governor Pete Wilson suspended most procurement requirements, secured federal waivers from environmental and contract requirements, and began reopening roads two months later. Similar waivers enabled Minneapolis to rebuild the bridge that collapsed in 2007—the contract was awarded one month after the collapse, with financial incentives for speed, and the project was completed one year later, two months ahead of schedule.

Leadership requires action, not extruding every choice through a legal sieve. FDR gave Harry Hopkins the power to start hiring the unemployed, and within months had hired 4 million workers, as Charles Peters and Timothy Noah describe in a recent article on Slate. But FDR couldn’t have built a stone wall in Yosemite, much less the dams of the TVA, under today’s legal regime.

It’s ironic, of course, that America can’t invest in green infrastructure because it must crawl through years of environmental review. But Congress could readily change that. All that’s needed is a new expedited framework for environmental review—say, one year—and broad waivers from endless contracting bureaucracy. Authority could be given to a special infrastructure board (including environmentalists), run by the modern equivalent of Harry Hopkins, with the power to approve siting and bid contracts as a business would. The committee would report to the president, with oversight by Congress.

America must restore the conditions for leadership. Amending all the laws on the books that govern contracts would take too long. Far easier just to waive them temporarily, replaced by expedited processes that allow things to happen. America needs to modernize its decrepit electric grid and crumbling transportation infrastructure. America needs a stimulus. America needs a vision of a purposeful future. The goal should not be perfection, or unanimity. That’s the false utopia of modern government, leading only to paralysis. The goal is action, toward projects that most agree are vital.

Philip K. Howard, a lawyer, is the author of Life Without Lawyers: Liberating Americans From Too Much Law, just released by W.W. Norton, and the bestselling The Death of Common Sense. He is chairman of Common Good and advises leaders of both parties on legal and regulatory reform.

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