Ep 135: Philip Howard on Saving the American Spirit

0:00You read these stories of American innovators, the Wright brothers, the Goodyear, Edison, most of whom uneducated, who tinker their way to brilliant inventions. You were whoever you invented yourself to be. Red tape makes people go brain dead. You said there's three major changes in the East. Restore authority here. It's all about rebooting the system. We treat law like it's the Ten Commandments or something, but it's the 10 million commandments. AI offers an incredible opportunity not only to help do things, but also to help validate things. I think the American people are sensible, and most Americans know the system is broken.

0:42We all know that our government doesn't work as well as it could in America. Infrastructure takes decades to fix. There's money wasted and stolen everywhere. Philip has thought about this longer than anyone I know, and I followed his work as an inspiration for many years. He has frameworks on how a whole new operating system and a whole new approach to government that puts back in responsibility, human judgment, and accountability could fix everything. He's written some great books. He's a best-selling author. His latest book, Saving Can Do, It's about how to apply the American spirit to fixing our government.

1:11He has some really clear frameworks for policy leaders for how to do it. Let's hear from Philip. Welcome to American Optimist. Really excited to have with us today, Philip Howard, who's the founder of The Common Good, bestselling author. I've been a fan of your work for a long time. You're really one of the leaders in government and legal reform in America these days. Thanks for joining us. Great to be with you, Joe. So, Philip, you started Common Good in 2002, right? It's over 20 years you've been doing this. actually I don't want to bias our listeners against you because I agree with and love so much your work but you used to work I think with Al Gore as well and others like what was your background?

1:43Well I'm a lawyer and who got interested in the dysfunction of government before that I'd worked as an economist doing doing public policy work at the Oak Ridge National Lab and other places but I happened to write this book called The Death of Common Sense in 1995 and became a bestseller. And so Al Gore and Bill Clinton didn't want the Republicans to have it. So they glommed onto me and I ended up working on their reinventing government initiative. There were some clever stuff from that side in the 90s. It was more a bipartisan thing back then to acknowledge government should be less stupid. Yeah, that's right.

2:17And they did some projects when Newt Gingrich was Speaker of the House and such. So some things got done. Nothing big, to be honest, except for welfare reform. We both have different views on this and a lot of them overlap. You know, in my world, it was really the 1970s and the late 1970s. They put in a bunch of rules that really broke government, really stopped us from firing people, stopped us from measuring their merit. You refer your book, I think, to the 1960s as a problem as well. What's the history of how things broke here? Well, I think the genesis of the red tape state is the guilt arising out of the 60s.

2:54Then the changes occurred in the 70s and the 80s. So you're right that, for example, the Civil Service Reform Act in 1978, which made it impossible to hold anybody accountable, was at the end of the 70s. But there was a kind of a fatal theoretical flaw that they committed, which was to try to create a government that was better than people. They wanted to create governing as a kind of a software program where if you had a thousand-page rulebook, you just comply with the rules. And you could have an extensive procedure, and you prove by objective evidence that your answer is correct. And if you didn't like it, you have a right to complain.

3:38And it's just led to this morass. Yeah, just basically thousands and thousands and thousands of rules and taking out you in judgment, which is the opposite of what you argue for. So your newest book, Philip, is called Saving Can Do, How to Revive the Spirit of America. Reading this reminds me of a lot of your other work, which is great. You've been hitting on some of these key themes for a long time. Like, where did this one come from? It came from the fact that I have an appointment at Columbia and we were hosting a forum about doge in the spring and I realized in talking to some of the experts that they had been raised at a time when the notion of humans using judgment was no longer part of how they even conceived of governing.

4:20They thought of governing as just a legal compliance model. Just purely following 10 ,000 rules. Yeah, or proving by objective evidence that someone isn't working hard, or proving somehow by objective evidence that the benefits of the transmission line outweigh the harm of building it through a pristine forest. So rather than a boss saying this person is not working out, that's not how they think of the world. They want to have just rules. Yeah, they want to have a rule that you can demonstrate that they're not working hard. And of course, it's all been the motives where I think generally good, you know, let's don't have bias and, you know, let's make sure everything is done correctly.

5:00but in the workplace, for example, it's been perfectly counterproductive. Everyone knows when someone's not telling the truth. So you have an interaction with someone or you're giving someone a job review and you're not saying what you really think. Well, what do they think? They see that you're not telling the truth. So they think it's bias, right? The whole point was to avoid bias. Instead, you've kind of exacerbated the sense that there is bias. One of your main arguments, and we go into it more, but it's to let people take responsibility again and to judge them from how they do. What does it mean to have accountability and responsibility?

5:36Well, in my world, law is a framework of authority for public officials, for example. We could talk about it in a free society as well, but law is a framework for authority. And within that authority, someone makes decisions using their judgment. And if it's an important decision or we don't trust people, you can have a check and balance like the constitution has and somebody else to approve the decision. And if they do a lousy job, they get fired. That's accountability. But we don't have that now. Everything is legalized. Follow the rules. And then if we have any oversight, the question is, did you comply with the rules?

6:15Not, did you do a good job or did you actually help the person? There's no basic common sense judgment and did you fail or did you do a good job? Let's go to the theory of this again, because so our founders obviously had a certain view of how this should work. And John Adams famously argued, we want a government of laws, not of men. But you're saying we almost went too far where it's not just laws, it's thousands of sorts of things. Like was John Adams wrong or was he saying something else? Well, John Adams was a lawyer. He was a very good lawyer. But in his day, law and until the 1960s and 70s, law involved using judgment.

6:51Judges use judgment. Everybody use judgment. And so when he said a government of laws, he meant you didn't have a potentate who could throw you in jail because they didn't like your political views. You know, that we have a principle in the Bill of Rights for freedom of speech. So that's fine. That's a legal protection. He didn't mean central planning. He didn't mean there was no such thing as a rule book telling you exactly how to organize your office and work. Yeah, there's no regulatory state when he was talking about that at all. So the right and the left are arguing over the size of government, but would you say that neither side has a view of how to make the government actually function properly?

7:31Yeah. So there are two really big problems with the modern red tape state. The first is a problem that all institutions have, which is they take a life of their own. You know, sediment piles up like in the harbor and you can't get anywhere. You know, we have 162 STEM training programs in the federal government. Nobody goes to see if they work or consolidate. There's no accountability for these things. And so you can't get anywhere. So government's long overdue for spring cleaning. We treat law like it's the 10 commandments or something, but it's the 10 million commandments. It's actually 150 million words of binding federal law and regulation.

8:15150 million now. 150 million. Almost all written since 1970. Yikes. The constitution by contrast is 7 ,500 words because it's a framework of authority with checks and balances, not an instruction manual. So we do need to clean it out. But the second problem, which I alluded to, is the philosophical problem, is that we don't actually have the idea that officials and everyone else have to have room to make sense of daily choices, that law is supposed to be a framework, not, again, not an instruction manual. And so So when you have 4 ,000 worker safety rules, most of which are completely self-evident, it doesn't actually help, there are studies of this, it doesn't help worker safety.

9:05It actually hurts worker safety because figuratively speaking, people have their noses in the rule books and they trip over the saw. So to make anything work, if anybody's ever done anything, knows, requires you looking around and adapting and using, perceiving and using your common sense. I want to get some more specifics around how to fix things. I remember infrastructure is an area we talked a lot about in the past that I think this applies really well to. But before we get there, let's go to the frameworks of your book, because I think there's some inspiring ideas that are tied to this. Your first part of your book, I think you divided into three sections, is called Striving, How to Recover America's Magic.

9:40And I like how you talk a lot about the pioneer spirit, I refer to it as the frontier spirit of our country. What's uniquely American about that energy? People owned, they owned their choices. In the old world, you're born in a certain place, you stayed in a place, it was very hard to move upward or do anything. And so you had a very constrained life by birth. You come to America, well, at the beginning, there's a wilderness all around. You have to adapt, you have to deal with the Native Americans, the bears. The frontier is existential, right? If you screw up out there, you're in much more trouble than you screw up back home.

10:19But it also is a place of incredible opportunity. And so people can innovate and invent. And you read these stories of American innovators, you know, the Wright brothers, Goodyear, you know, all these Edison, all these people, most of whom uneducated, who tinker their way to brilliant inventions. and it was a place and Tocqueville talks a lot about this people took pride in the fact that they woke up in the morning and they owned what they did they owned their values and they owned their community they worked with others what he calls self-interest rightly understood so we had this sense of this incredibly liberating sense of instead of being cabined in a place you were whoever you invented yourself to be.

11:12I think that's really interesting is to own your community and take responsibility for your community. I feel like that when the federal government stepped in and handled a lot of these local problems that actually took away that sense of ownership and duty for a lot of our communities. Completely. We can talk about it, but red tape is a form of central planning. It's just telling people what to do. And not only does it not work for the central planning, it actually as a matter of cognitive science makes people go brain dead you know the human brain is not like a you know it's you know it's not using nvidia chips i mean it's you know the working memory is the constant part of our brain is like an eight-bit processor it can only retain so much you overwhelm it with rules it loses the common sense it freezes it it's called cognitive overload there's actually a science so the leading expert is a guy named john sweller in Australia.

12:04And he and I work together now. The second part of your book, you talk about how human authority is needed and talk about for good schools. I thought this was particularly interesting because you talk about good schools need good cultures and it's not about the rules as the cultures. But you also pointed out something I thought was interesting. In 36 states of our country, the donations by the public unions, which are trying to keep their own rules and their own power, the donations in those 36 states is bigger than all of the business donations combined. So these unions are completely in charge.

12:32And what are they doing to break things here? Tell us about it. Well, first of all, that was the teacher's union alone, not even the other public. Just the teacher's union alone. It's bigger than every business. 36H, all other business groups. And of course, all the business groups have all completely different interests, right? So imagine the preemptive power of a union that essentially buys the fealty of whoever's elected. Well, the current governor of Chicago, Brandon Johnson, 90 % of his election funds came from the unions. They're just completely in charge of him. They're completely in charge.

13:06And so it's politically, it's basically politically impossible in those states to fix, to make schools functioning again, and we have to have good cultures. So we've raised money to organize a constitutional challenge to teacher union controls. The basic theory, which is a well-established constitutional theory, is you can't delegate governing power to a private group. Yeah. So we argue that collective bargaining laws and agreements delegate governing power to the teachers union. We elect a mayor to run the school system and the mayor doesn't have any of the managerial tools needed to do that.

13:54You can't fire a bad teacher. You can't allocate resources differently. The principal can't come in and observe the teacher to see if they're doing a good job. A hundred percent. Except for seven days notice. There's a special interest that's taken this away and broken it. So is this a constitutional question for states or for the national constitution? We're arguing it under the United States federal constitution because the state courts have all more or less been bought off. Yeah. So they've all said it's fine, but there is a well-known federal constitutional principle which is embodied in the idea of a Republican form of government.

14:31So which means that voters elect someone who for a term of office must keep the authority to fulfill his public responsibility. responsibility. And that applies to states and localities. Interesting. So you're going to try to push this, and this is going to be a Supreme Court case you would try to push then? Yes. So we've hired a law firm. We just finished a workshop that the Liberty Fund organized with some leading scholars to go over various nuances. We're developing a kind of breach of loyalty ethical argument as well. And so we're hoping to, we're working on white paper which I think is important to condition the market for this on what the cost of unmanageability are.

15:17In other words, how much harm does it do the public if public agencies and schools can't be managed? They're so broken right now. Yeah, they're so broken. And so we could actually, we could use help thinking about that and figuring out how to do that. But we're at the beginning of doing this white paper, which we hope to do in the next two or three months on unmanageability. And then we have, we already have a draft complaint that we're working on, that we've developed. And so then we're going to go to the Trump administration and see if they would be the best plaintiff. Amazing. Well, I'm eager to help you.

15:55We'll talk offline about this, how we push this forward. And if our listeners want to get involved in looking at this, is there somewhere they can go read more about it? Sure. Well, commongood.org is our main place, but my personal email, people are welcome to go to is my middle name is King. So P. King Howard at Gmail. Amazing. Philip, the third part of the book I want to jump to, which actually relates a lot to the same themes, of course, you call it Escape from Quicksand, a new framework for modernizing America. Quicksand is an interesting metaphor here. We basically need to be able to start building things again without everything slipping away and being taken from us.

16:29And I remember we talked over a decade ago at one point, and you were telling me how it took over 10 years at least for infrastructure to be approved and there's 20 different groups that can each harass you and there's just no decision maker at all just everyone harassing you with law and i think the comical thing is even the native american tribes could sue you and delay it for multiple years right it just is a total place they hadn't been for 200 years i'm in 200 years and then when they were there they probably had just recently conquered it from someone else but but they get to sue you too the whole thing makes no sense and so the idea is that modernizing your infrastructure requires a new framework based on a different operating philosophy and it's It's interesting, I think you say in the book that we're all living under the infrastructure built by our great-great-grandfathers, basically, right?

17:11Right. I mean, what are the odds today that you could get permission to build a rail line over the Sierra Nevada mountains? There'd be 15 environmental groups and who knows? The odds are zero. It would take a thousand years. Literally, it would take a thousand years. You would never do it. And yet the economy of this country literally rides on the UP, the Southern Pacific, the Northern. A hundred percent. I think you said like the stuff going in and out of New York, they've taken like, it's going to take 30 years or something for them to have built the new capacity needed because of all the studies.

17:46Right. Because a tunnel under the Hudson, which had already been the subject of environmental studies, is still taking 30 years to do. So you can't have a system where people simply trudge through a legal maze and expect anything to happen. Someone has to make choices. I love this part in particular. I think these are things like we need all of our officials to study and we're going to have to publish this stuff later, Chris. You said there's three major changes needed to just restore authority here. One is a new legal framework we could talk about. Two is new institutions that can inspire trust and ongoing decisions.

18:23and three you said we should put forward a special commission to design the details of this and this needs to be done you know and i thought the new legal framework was really interesting obviously you need you need like a key agency a single agency to be in charge of you saying yes or no like that's critical you can't have 18 people and then they say take all the other stuff the 50 years of you call it accumulative accumulated mandates it's all the all the junk all the all the rules instead of making them hundreds or thousands of rules make them principles for everyone to follow. So you take that and then you say the processes should be tools for transparency.

18:57I like that a lot. It's really important as someone who's worked with the government, we need to make sure their process is transparent, not that they're imposing things on you. Talk about that a little bit. Yeah. So the importance of process is mainly transparency. So when you're doing anything in life, you're making a judgment, it's always good to run it by somebody else right you're writing something you let somebody look at it and maybe it makes some editorial suggestions it's just the way of life husbands and wives agree in my experience on nothing so you're constantly having to sort of interpolate you know kind of so what different points of view are fine you know and that leads to kind of better danny kahneman writes about this and his work we're having a lot of discussions with our six kids about the trip to europe this summer already about the dynamics around this there's a lot interpolation.

19:45Let the one-year-old decide. So it's important to have transparency and environmental review was a good idea for that. But environmental review should focus on important items, not be this dense project of no pebble left unturned. This is something that's like one of my biggest pet peeves because whenever I talk about this, there's like some leftist in the comments is like, Joe just wants to pollute everything and and like, you know, make everything dirty and ruin our air and our water. And these evil Republicans are, it's like this person's just been watching Captain Planet nonstop for 30 years.

20:19And that's like their whole brain is Captain, it's like Captain Planet has to stop us. And it's, but it's obviously not that we want pollution is that you have to have a reasonable framework to get through it. Right. There is no project that doesn't in some way adversely impact the environment. The question is whether the benefits are worth it, like the transmission line in the forest or the or the rail line over the over the Sierra Nevada it's we didn't have those rail lines how would that how those goods be served they'd be in trucks spewing you know spewing diesel fuel you know smoke into the air so so the question is always one of trade-offs and trade-offs cannot be decided as a matter of law trade-offs always need judgment and so you need to have transparency you could do that in a matter of months with almost all project.

21:08Then you have to have a decision maker. Then you have to have somebody, because nobody trusts anybody, who has power to overturn the decision maker. That's the White House maybe in some cases. Yeah, maybe the White House. And then the only role of a court is to decide whether in making those judgments, the person exceeded the scope of his authority. And you actually say that we have to make sure we limit which courts could do things. Because right now, every court reaches and in their affairs, which is crazy. Yeah, no, it's completely crazy. And by the way, the harm of this process is not just money and time.

21:44All these lengthy environmental reviews turn out to be dramatically harmful to the environment because we can't fix the bottlenecks. We can't create the new transmission lines that carry electricity from the renewable sources and such. It's overwhelmingly harmful to the environment to have slow environmental reviews. But why is it that we can't get sufficient reforms? Because the environmental groups don't want to give up their veto. Well, a lot of the environmental groups seem to be a special interest tied to environmental lawyers. They're trying to make a lot of money off of all this, like everything else, right?

22:21And get power. So they say, well, we may support it if you give us this or do a - Yeah, give us a giant grant. ... parkover or something, whatever it is. And I mean, not all environmental groups, but most of them are really have become insidious forces in our society. It's really too bad because I think all of us want a framework to protect the environments and protect, you know, I mean, I have six young kids. I want them to have clean air and clean water and beautiful places to go. But at the same time, we have to be able to build in our society. It's interesting. One of my obsessions in business is doing things in areas that were almost impossible to do because the government was so bad.

23:02So when I've built things in defense or in healthcare, it turns out that if you can manage to get it done, the competition is not very good because the government's been stopping it. So one of those areas in infrastructure, what that means, there's big gaps, of course, in our society because it's not allowed. So, for example, Elon Musk's Boring Company. I'm obsessed with this because infrastructure is so hard to do. And he's made these tunnels so cheap that it becomes this like hundreds of one return for society if you can get rid of traffic by building. And we just have to figure out how to get them allowed.

23:29Right. Which I think is pretty fun right now. Yeah, it's brilliant. I mean, it's brilliant. And I was sitting on the plane next to a guy who runs a construction company. He's building the border wall between Mexico and Texas. So he's talking about the difficulty of one, getting permitting, and two, all the rigidities that are built into the labor rules and labor laws that double the cost of projects. Double. Yeah. So we're talking about this fantastic culture, America, where the American spirit, I think, is still alive and well, but where this kind of burden of red tape has descended upon everything.

24:11And they're now encased in legal concrete. You know, these unions have these rights, and these people have these rights, and this group has the right to veto. And so we're at this point where if we could simply not, quote, deregulate, but simply shed these interests and go back to the goals of the public, you know, clean air, clean water, or whatever, and have effective mechanisms as if you were running a company, you could literally unleash unbelievable amounts of productive energy and money. And it seems, Philip, this stuff's all finally coming to a head in my view for a few reasons. So a lot of us as builders in Silicon Valley, a lot of the talent in the world came to Silicon Valley and we were able to build there because there wasn't red tape on the internet.

25:00And so I think a lot of Silicon Valley, a lot of our best, attract a lot of our best builders because it could build freely, right? Because it didn't have people in the way we'd be doing things in a year that would take 10 years in another industry. And now what's happened is thanks to where AI is going and thanks to this like push for robotics and advanced manufacturing, you're starting to see Silicon Valley and, you know, it stinks to healthcare work. It's intersecting with all of these red tape and rules. And I think that's a lot of why a lot of people in Silicon Valley got what we call red pilled, where they came around and actually got involved in this administration because they said, wait a second, government's just breaking all of these things.

25:35And so you now have all these builders trying to actually build things in manufacturing and healthcare and other areas. And so I think this is a really good time to hopefully teach some of these builders, these frameworks and guys like you who've been working on this for 25 years. Are you seeing more interest from Silicon Valley yet? And how do we kind of harness them into these principles? Because I think these smart people should be learning about these better. Well, completely. And I think AI offers an incredible opportunity to overcome what is the ultimate source of distrust in addition to special interest.