When businesspeople complain about regulations, you should generally be skeptical. The regulations, after all, are there precisely because some businesses can make more money by despoiling the environment, endangering public health and safety, and threatening the financial system. A regulation that’s not annoying someone by wrecking his money-making scheme would be completely pointless.
But there is one category of complaints about regulations that should earn your sympathy: the complaints that too many government regulations are unreadable. Incomprehensible rules undermine, rather than enhance, the goal of preventing misconduct. They create unique burdens on smaller organizations or new entrants into a line of work. Hard-to-understand rules are a lawyer’s best friend, and the need for companies to lawyer up is a huge advantage to large or established entities.
Consider, for example, the relevant federal rules about renovating an old building suspected of containing lead paint. I hesitate to even quote examples of confusing regulatory language lest my column itself become unreadable, but surely the U.S. government can do better than: “On or after July 6, 2010, all renovations must be performed in accordance with the work practice standards in §745.85 and the associated recordkeeping requirements in §745.86(b)(1) and (b)(6) in target housing or child-occupied facilities, unless the renovation qualifies for the exception identified in §745.82(a).” You’ll be glad to know, however, that §745.82(a) does, among other things, offer an exemption for “emergency renovations” (which has a word salad definition of its own)—with the sub-exception that “emergency renovations are not exempt from the cleaning requirements of §745.85(a)(5), which must be performed by certified renovators or individuals trained in accordance with §745.90(b)(2), the cleaning verification requirements of §745.85(b), which must be performed by certified renovators, and the recordkeeping requirements of §745.86(b)(6) and (b)(7).” Got it? Me neither.
Into this stew dives Iowa Democrat Rep. Bruce Braley, who unveiled his Plain Regulations Act on Wednesday, saying, “Gobbledygook dominates the regulations issued by government agencies, making it almost impossible for small businesses to understand the rules of the road.” Forcing the government to write in plain English is a great idea. So good, in fact, that it’s enough to make you wonder why it hasn’t happened already.
The answer turns out to be that it has. Many times.
Braley himself authored the Plain Writing Act of 2010, which passed in the fall of that year and was signed into law by President Obama. The act requires the federal government to present newly written forms and other documents in a “clear, concise, well-organized” manner. This, too, was a good idea, and has produced some genuine progress: Check out the before and after versions of this Medicare fraud letter. At the same time, clarity is perhaps in the eye of the beholder. I’m not sure I would consider this new NOAA draft statement of priorities to be model English, despite having been written in the post-Plain Writing Act era.
Braley’s new bill proposes extending the plain-English requirement to new regulations. Legal demands for clearer writing date back at least to the 1970s, when Jimmy Carter issued executive orders requiring regulations to be “cost-effective and easy-to-understand by those who were required to comply with them.” The Reagan administration decided to rescind those orders, but they made a comeback in the Clinton years. Executive Order 12866 demands that regulations be “simple and easy to understand, with the goal of minimizing uncertainty and litigation,” and Executive Order 12988 contains eight separate references to “clear language.” Vice President Al Gore presented regular No Gobbledygook Awards as part of his reinventing-government initiative.
And yet after all these executive borders, we still need Rep. Braley and his bills.
Perhaps the beginning of wisdom here would be to admit that writing well is hard. It’s even harder when a regulation serves both as an instruction for citizens and businesses and as a potential object of litigation. Making text easy to understand and minimizing the possibility of lawsuits are two different jobs. “Legalese” is a term of disparagement, but lawyers write that way for a reason. And it’s not as if government is the only place where bad writing afflicts us. We’ve all been baffled by instruction manuals, annoyed by consultant jargon, and confused by health insurance forms. Some of us are full-time professional writers and still wrestle with the question of how to explain complicated subjects in a way that’s accessible, informative, and accurate. If getting the job done were as simple as editors handing out a memo ordering everyone to write better, the media would be a very different place.
What’s really needed is more resources and more support. The PlainLanguage.gov website maintained by an informal group of federal employees who call themselves the Plain Language Action and Information Network, is a useful tool, but it’s a bit threadbare. The government could use an active and feisty core of dedicated writers, editors, and graphic designers to punch up key documents. The EPA lead rule, for example, probably needs to stay wordy and unreadable for legal purposes but could be easily punched up by a flowchart that would help you figure out which category you belong in.
The Internet should be a godsend for clarity, enabling agencies to bury wordy definitions beneath links or helping you find the relevant rule by asking questions the way TurboTax does. But to do that stuff, someone would have to roll up her sleeves and do the work. That would require some money and some new personnel, which are in short supply. Also, that hard and boring work lacks the populist common sense appeal of simply mandating clearer writing and making fun of gobbledygook.