Obsolete Laws, Do-Nothing Congress, and the Filibuster

By: Philip K. Howard

Anything positive that comes out of Congress is big news, as with the recent bipartisan support for a $1 trillion infrastructure package. But that’s only half the job: Congress must also fix the delivery system that delays permitting and guarantees wasteful procurement. For example, building a resilient, interconnected power grid — probably the top environmental priority—is basically impossible in a legal labyrinth that gives any naysayer multiple ways to delay, and then to delay some more.

Congress has responsibility not only for enacting new laws, but for making sure old laws work sensibly. But Congress rarely fixes old laws. Congressional oversight consists of posturing at public hearings, not corrective legislation. Congress has effectively abdicated the oversight job to the executive branch and federal courts, which have inadequate authority to make needed legal repairs. The ship of state, weighed down by a century of statutory barnacles, plows slowly in the same direction year after year.

No statutory program works as it should. Infrastructure permitting can take a decade. Health care is a tangle of red tape, consuming upwards of 30 percent of total cost; that’s $1 million per doctor. In about half the states, teachers are outnumbered by noninstructional personnel, many focused on legal compliance. Accountability of public employees is nonexistent; 99 percent of federal employees receive a “fully successful” rating. Obsolete laws notoriously distort resources; the 1920 Jones Act, for example, makes it more expensive to build offshore wind turbines because of its requirement to use U.S.-built ships.

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