David Lewis Schaefer, Professor Emeritus of Political Science, College of Holy Cross
It is widely known-or it should be-that economic progress in America, and even our nation’s military security, are seriously hampered by a surfeit of litigation and excessive bureaucratic regulation. To take just one example culled from the latest headlines: Although the U.S. played a central role in the development of nuclear energy production and still leads the world in that field, in the last few decades, as the New York Times reports, “it has fallen far behind China, which is expected to have the largest nuclear power capacity by 2030.” Despite the development of Westinghouse’s AP1000 reactor early in this century, which was used to construct two reactors in Georgia, the “nuclear renaissance” that was supposed to occur in this country-following decades without any new construction-never occurred. Instead, after the Georgia reactors were completed, at a cost of $35 billion (more than $20 billion over original estimates), Westinghouse had to file for bankruptcy. Various other projects around the country failed, sometimes leaving utility customers “on the hook” for billions of dollars and costs. By contrast, the Times reports, China “has overcome the construction delays and cost overruns that have bogged down Western efforts to expand nuclear power,” having “nearly as many reactors under construction as the rest of the world combined.”
This is the sort of problem to which Philip K. Howard has devoted much of his energy to solving. Howard is a lawyer, civic reformer, and chair of Common Good, a nonpartisan organization aimed at simplifying American government to make it work more efficiently and effectively. Howard’s first, best-known book was The Death of Common Sense, a critique of the horde of superfluous regulations that interfere with government’s performance. Subsequent works have, among other themes, challenged the Constitutionality of public employee unions, which generate government that is “unaccountable” to the citizenry at large, and uncovered the way in which “self-invented” individual rights immobilize both public and private institutions, obstructing the provision of needed services out of fear of offending obstreperous customers and possibly becoming the object of a groundless lawsuit.
Howard’s latest volume is aimed at showing how the “Can-Do Spirit” for which Americans were long known can be revived. In his introduction Howard asks whether America is living through a “1917 Moment,” in the sense that “a major shift in the social order” may be “triggered” by the failure of our “ruling elite to deal with outside pressures,” as occurred in the months preceding the Russian Revolution. The analogy seems exaggerated, since Howard is not forecasting a violent uprising. Nonetheless, he cites both the “broad populist resentment” that engendered the takeover of the Republican Party and then Washington by “Trump’s MAGA movement”-which swung “a wrecking ball at the status quo” through Elon Musk’s abortive DOGE program but failed to offer a vision of “how government will work better” subsequently-and the “buckets of money” from interest groups that have a stake in the status quo, yet similarly failing to propose a path to better government.
In response, Howard proposes “a simpler framework of goals and principles” that would give public officials greater latitude to exercise their judgment, rather than have their choices “micromanaged” through narrow rules-although they of course must remain accountable to the public through elections. Howard’s “simplified operating framework” would take a decade, he estimates, to “empower officials to fix crumbling infrastructure, and extricate them from red tape for defense procurement and for healthcare.” This will entail overhauling the civil service to make public employment “a merit system, not a sinecure” – discarding “union controls” that stand in the way.
Following an Introduction, Saving Can-Do consists of three essays. The first, “Striving,” explains how our current system of governance deters public employees from exercising initiative by subjecting them to detailed “bureaucratic” regulations that fail to appreciate how “subjective judgements are the essence of freedom, not its enemy.” The second chapter, “The Human Authority Needed for Good Schools,” applies that principle to K-12 education, contending that previous efforts at school reform have ignored the need to establish “a school culture grounded in individual responsibility.” Finally, in “Escape from Quicksand,” Howard explains how excessively detailed “conventions of legal compliance have caused infrastructure permitting reforms to fail,” and proposes “a blueprint for new governing frameworks” that would speed permitting, “procure commercially reasonable contracts,” and thus “start rebuilding” the nation’s infrastructure.
In “Striving,” citing three of his previous books, Howard maintains that the spirit of “restless activity” that Tocqueville once found to pervade American society “has been collapsing over the past fifty years” owing to “a flawed philosophy of government” which holds “that law should preempt human judgment in daily activities.” He portrays this new outlook as an overreaction to “the tumultuous 1960s,” aiming “to avoid…abuses of human authority such as racism and pollution.” In consequence, Howard argues, “public officials feel powerless to cut through paralytic red tape,” causing infrastructure projects to “take a decade or longer” to compete; “public permitting can be dragged out indefinitely by parties known to have an ulterior motive” such as seeking financial settlements to drop their objections, “candor in the workplace is virtually extinct, supplanted by a culture of fear that an offhand comment might be held against you, “ and a combination of red tape and union regulations prevents failing schools from being repaired. And he attributes “broad resentment of DEI programs” not to opposition to “giving everyone a fair shot, but [on] how DEI worked-compelling a supervisor to prove a negative” – i.e., “that the DEI candidate is not as good as another candidate.”
While many citizens rightly share Howard’s objection to excessive red tape in government, failing schools, and a “culture” that deters people from speaking frankly lest they be subject to unwarranted charges of bias or insensitivity, it isn’t clear that each of these problems can be attributed to the same change in “philosophy” he objects to. Surely accusations of “racism” and “pollution” rest on fundamentally different grounds, even if new laws and institutions aimed at combating them arose roughly within the same decade (the Federal civil rights laws of the 1960s, the establishment of the Equal Employment Opportunity Commission, and then the Environmental Protection Agency). As for the opposition to DEI, it was generated precisely by the transformation of what was originally advertised as “giving everyone a fair shot” into the demand for race-based preferences, since DEI advocates treated “color-blind” hiring or school admissions as manifestations of racism. Nor does Howard make clear, finally, what it would mean to “reactivate morality in a culture smothered by legal dictates” by encouraging people to “start debating policy and decision in moral terms”: he surely exaggerates in asserting that “doing what’s right, or responsibility, has little connection to legality.”
Howard’s chapter on the “Human Authority Needed for Good Schools” is more focused and largely persuasive. Here he identifies the chief cause of “the breakdown of authority” preventing school improvement chiefly to two causes: the “accretion of government mandates that has progressively narrowed the range” within which educational leaders-notably, school principals-can exercise their authority (e.g., over student discipline), and “union collective bargaining controls that undermine principals’ authority” (for instance, over hiring, promotion, and hours of instruction). As one example of the lengths to which unions will go to defend members’ interests at the expense of those students, Howard mentions a young Boston teacher who was denounced by a “union rep” for “volunteering to help out with breakfast duties for students from poor families,” on the ground that such volunteering wasn’t authorized by the union contract.
There is one respect, however, in which Howard’s proposals for education reform stumble. In his quest to advance the “autonomy” of schools and teachers, he objects to mandatory testing of public school students in major subjects at several grade levels. This program was pioneered by Massachusetts in the 1990s, then made (in less demanding form) a Federal mandate under the 2001 No Child Left Behind Act, followed by Obama’s Race to the Top in 2009. In Massachusetts in particular, the original program proved highly successful in raising student performance by compelling teachers to stick to the assigned curriculum rather than dither time away. Comparable, though lesser, achievements were achieved under the Federal laws. (Unfortunately, thanks to a heavily union-financed referendum campaign, Massachusetts citizens voted in 2024 to repeal the testing, while the Federal programs have withered away.) Howard himself acknowledges that the prospect of being shut down “produced significant changes in poorly performing schools,” and also notes the beneficial “transformation in New Orleans schools” following Hurricane Katrina, when the regular public schools were replaced by charter schools, typically nonunionized.
Howard deems “a political remedy” to the power of teachers’ unions “unrealistic,” given the vast influence unions exercise through their political contributions. Thus he calls instead for a “constitutional challenge,” on the ground that subjecting public institutions to union dictates constitutes an illegitimate delegation of political power. Perhaps so; but at least one recent development offers some hope that the power of public unions in various fields may soon come under political restraint. At the end of August, the Trump administration acted to remove collective-bargaining rights from some 445,000 Federal workers whose jobs were related to national security, in pursuance of a plan to withdraw such claims from almost a million employees.
In “Escape from Quicksand” Howard contrasts the speed with which major national infrastructure projects – the Erie Canal, the transcontinental railroad, and the Interstate Highway System – were once completed, without the agonizingly slow and costly process that even minor projects must undergo today. (Four years after President Obama signed the FAST [Fixing America’s Surface Transportation] Act in 2015, the average time required to complete an “Environmental Impact Statement” for a project remained unchanged at four years, seven months. The impact statement for raising New Jersey’s Bayonne Bridge required five years and 20,000 pages.)
Howard proposes “three major changes” to restore public agencies’ “authority to achieve results” in infrastructure development. These include a legal framework that would limit the ability of courts to block projects on procedural grounds, unless the process was demonstrably “arbitrary”; a “national infrastructure board” comparable to the successful base-closing commissions that would advise both “political leaders and the public on the priorities and progress” of projects; and a “nonpartisan codification commission” to supervise the effectuation of the foregoing reforms.
Few reasonably informed readers will dissent from Howard’s critique of our existing programs for infrastructure development. Nonetheless, he likely underestimates the political obstacles to achieving needed reforms. What will prevent judges inclined to favor the demands of litigants from defining given approval procedures as “arbitrary”? When Howard proposes to authorize the national infrastructure board to back “projects that may be opposed by NIMBY interests,” who gets to define which such objections are merely based on NIMBY attitudes rather than legitimate local concerns?
Saving Can-Do, like Howard’s previous books, merits applause for the author’s thoughtful commitment to bringing out much-needed governmental reforms. In all likelihood, however, it would take well over a decade before established interests-which often think of themselves as motivated by high principles – could be persuaded to drop their opposition to his most sensible proposals.