Howard: Our old laws stymie progress

America is basically run by dead people: We elect new representatives, but continue on with policy from decades ago. To go forward, Congress needs to confront the past.

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 a 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.

There are four problems caused by the accumulation of old law: 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.

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.

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.

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 an army 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 the author of "The Death of Common Sense" and "Life Without Lawyers." He is chairman of Common Good (commongood.org), a legal and civic reform organization. This piece originated on the Web site of The Atlantic (www.theatlantic.com).