When fairness produces paralysis.

Resolved: The American people hold their elected officials and the institutions in which they serve in very low regard. Unresolved: What to do about it.

There is no shortage of theories about why legislative bodies are held in such low esteem by the public and about how to improve the image of the legislature. Here is a short list of the new conventional wisdom:

* Education. Citizens have little faith in government because they do not know enough about it. If only we had more and better civics education, and people learned more about our government institutions, then their faith would be restored.

* The media. With its negative sensational approach, the press seldom reports on the success stories in American government. If only the media would change its focus, Americans would begin to trust government. Education comes into play here, too. We need to educate the media about legislative institutions and their accomplishments.

* Ethics. Loose ethics have undermined voters' faith in government officials, some of whom have been tainted in sting operations and other probes. Legislatures need to clean up the campaign finance system, tighten lobbying laws and create new ways to prevent unethical behavior.

* Reinventing government. David Osborne and Ted Gaebler argue that government structures are inefficient, and that governors and legislatures are handcuffing innovation and excellence in public employees. If we only free the bureaucrats - essentially put their brains to work for government - we can unleash their creative potential.

Yet states that have tried these approaches have failed to yield many tangible results. Recent polls show that the number of citizens who view government unfavorably is growing, not shrinking. Why?

New York lawyer Philip K. Howard has written a book that may provide some answers. The Death of Common Sense: How Law is Suffocating America offers a new take on the low public opinion of lawmakers. Among his key arguments: The modern approach to making and (especially) enforcing laws is so out of touch with reality that average citizens have simply given up on government.

Howard's book is littered with examples of ridiculous regulatory excesses and nonsensical laws, and rules that pay homage to procedure rather than results. According to Howard, government has become an obstacle to be avoided rather than a positive force for change. Bureaucrats are judged by whether and how they follow the rules, not whether the programs they administer achieve desired results. These rules and procedures allow government to avoid responsibility for decisions.

"We have invented a hybrid government form that achieves nearly perfect inertia. No one is in control. No one makes decisions. Only the massive weight of accumulated laws keeps everyone in check... Democracy has become a passive caretaker to a huge legal monument," he writes.

How was this bureaucratic monster created? Howard's thesis is that in our zeal to legislate "rights" and ensure "fairness," we have paralyzed government. He cites competitive bidding processes that must be so "fair" to prospective bidders that past performance cannot be considered, and projects cannot be completed quickly because losing bidders have so many avenues for appeal. He cites federal laws such as the Americans With Disabilities Act and local building codes that make it so expensive and complicated to convert abandoned buildings into homeless shelters that churches and other nonprofit groups simply give up on the projects.

Some of Howard's arguments are clearly controversial. He faults the tendency of legislative bodies and the courts to create rights for certain protected classes of Americans - older Americans, the disabled, students, government employees and many others. In his view, the accumulation of rights for certain groups has created "a nation of enemies" that allows a form of tyranny of the minority. Some rules and procedures make it so difficult to expel a disruptive student from school that teachers must put up with unruly and abusive behavior.

Employment law is another area cited by Howard: It is so difficult to fire "protected" employees that supervisors must tolerate abusive or nonperforming workers - to the detriment of other employees and to the organization as a whole.

The solutions Howard proposes will not come easily because they require a whole new way of governing and of being governed. He suggests giving government employees the power to make decisions without following a prescriptive process, but also holding them accountable for those decisions; making laws that focus on goals and outcomes, but giving regulators the flexibility to meet those goals in the most efficient way possible; and stopping the creation of "rights" for groups of citizens.

Above all, as lawmakers and citizens we must "stop looking to law to provide the final answer. Law should articulate goals, award subsidies, allocate presumptions and provide mechanisms for resolving disagreements, but law should almost never provide the final answer. Life is too complex."

This is must reading for all legislators in whom "reinventing government" struck a responsive chord. Instead of reinventing government, we need to reinvent the laws that prescribe how governments operate. Can Howard's ideas work in the real world? Florida Governor Lawton Chiles and many Florida legislators think so.

It remains to be seen whether Howard's themes will play in other state capitols and in Washington, D.C.

RELATED ARTICLE: The Answer to a Campaign Revelation

Florida Governor Lawton Chiles, who has been campaigning since 1959, found himself on the other side of the fence in November. For the first time in his political career the charismatic governor picked up a "feeling of hostility" in the electorate. "I've walked the state, I've knocked on doors, I've gone all around and generally I'm kind of one of them [the people] rather than one of the 'other group.' But in this campaign, I wasn't 'one of them;' I was one of the other group.

"There's such a feeling of anger and frustration," Chiles says, and he couldn't identify exactly where it was coming from. "But I did realize it was deep and strong and that three-fourths of the things people were so mad about were things we'd already addressed, but you couldn't get them to listen."

After he read Philip Howard's The Death of Common Sense, he says, "It was like a big light went on. Now I know more than anything else what we've done to ourselves.

"We govern with the consent of the governed and we are about to lose it," Chiles says. "WIthout that consent, we cannot accomplish anything.

"All of us have to realize that we've all been part of the problem. Now, we all have to be part of the solution."

Scott Mackey is in NCSL's Fiscal Affairs program.