How Biden, Delaware can lead on rewriting regulatory jungle

DOVER – With a new president preparing to take office amid a divided populace, lawyer and noted author Philip K. Howard believes there is an opportunity to unite Americans around a common goal: building a smarter, leaner government.

Philip K. Howard

In the decades that the federal government’s regulatory bureaucracy has grown in matters of health care, education, environmental, public service, and more, Howard argues that it has become an impediment to progress.

“While initially well-intentioned, regulations have piled up like sediment in the harbor,” he said.

It’s a theme that he became so passionate about that in 2002 he founded Common Good, a bipartisan reform coalition that aims to get decision-makers to rethink their regulatory approach. Taking cues from other countries that have slimmed down their rulebooks, Howard believes it is high time to dredge America’s regulatory “harbor.” He recently presented his ideas to the Caesar Rodney Institute, a Delaware-based think tank focused on smaller government, and spoke with Delaware Business Times afterward.

Howard said that there should be optimism that a Biden administration could make meaningful change in the nation’s regulatory framework. He would recommend the president convene a special commission to investigate how to make government work better for citizens.

“The point is not to deregulate, it’s to make regulation work better,” he explained, noting that it’s not a partisan issue. “I think ‘Better Government, Less Red Tape’ is a mantra that Biden could get behind and half of the Trump voters would become Biden supporters.”

Howard points to a May 2019 UChicago Harris/AP-NORC poll that found 66% of respondents think “major structural changes are needed to America’s system of government.” The findings were fairly similar between Republicans and Democrats.

“What we’re talking about is not getting the government out of hospitals, it’s getting unnecessary red tape out of hospitals,” he said. “Let’s empower people and give them the chance to do what’s right. Instead of giving them a 1,000-page rulebook, give them the goals and objectives and check up on their progress.”

Howard recognizes that part of the reason for the regulatory quagmire is America’s highly litigious society, which he opines is a reaction to distrust of judicial authority.

“We wouldn’t tolerate a prosecutor seeking the death penalty for a misdemeanor, so why do we tolerate some self-interested person suing for the moon for an ordinary accident?” he said, citing a 2007 court case where a man sued a drycleaner for $54 million for losing a pair of pants. “We need to have, in the common law way, judges make written rulings about both standards of care and the amounts people can sue for. If judges don’t do that, if we have an anything-goes kind of justice, then everyone’s going to seek refuge in these rule books.”

Howard noted that some countries, such as England, have cost schedules in place that prescribe values to certain injuries to ensure uniformity in claims. He worked with the Harvard School of Public Health in 2010 to design a more reliable system of justice for health care, which could lower treatment costs by preventing “defensive medicine.”

They crafted “health courts” that would operate with health care experts as judges, who would be required to make uniform decisions on standards of care in conjunction with a cost schedule for claims. Removing juries from the equation would decrease the likelihood of litigants playing to the emotions of laypeople who don’t understand the intricacies of an issue, while medical experts could determine whether appropriate measures were taken in particular cases.

“The whole idea was to make the cost of health care predictable,” Howard said, noting that President Barack Obama, U.S. Sen. and one-time presidential nominee Mitt Romney, and former U.S. House Speaker Newt Gingrich have all endorsed the idea.

A pilot of health courts was to be included in the Affordable Care Act of 2010 but lobbying by trial lawyers led Congressional Democrats to remove the provision and actually insert language prohibiting such tests. Howard said he believes it is a missed opportunity that should be picked up again. In many ways, the idea mirrors how Delaware’s renowned Court of Chancery rules on cases pertaining to stockholders, creditors, and board directors of publicly traded companies.

“People in Delaware, I think, would understand why it’s important,” he said. 

By Jacob Owens

jowens@delawarebusinesstimes.com