Breaking the Tyranny of Rules

If we want more responsive government in an age of disintermediation, we need rules and regulations both tagged and accessible by everyone.
by | August 23, 2010 AT 9:00 AM

I read Steve Goldsmith's recent column, Fewer Rules, More Results, with a pang of recognition. In thirty years as a federal official, I had to go "by the rules" all the time, and I even wrote some regulations myself. If we really want to improve the ills of too many rules, we need to move beyond describing the symptoms to some form of diagnosis and treatment.

That is, we need to figure out how to grapple with rules and regulations. So I humbly present my attempt to bring clarity to the chaos of rules in which government is drowning. First, government needs a rules taxonomy, some categories of rules and regulations that provide guidance about their importance. Second, we need greater transparency, not only of the rules themselves, but who within government is (or isn't) following them. Third, we need to delegate some authority to bend and break some of the rules some of the time.

The rules Goldsmith was focusing on were the rules that govern activities by and within government. Ignore the rules enforced by judges in civil or criminal court. We're not talking about those. Ignore, too, the vast body of rules to address conduct by individuals and organizations not related directly to government.

Focus, instead, on the rules governing activities related to government. I see three major categories:

  1. Statutory: Money appropriated for rapid rail can only be spent on rapid rail projects, as defined in the law.
  2. Regulatory: The outline for the environmental impact itatement you must file in order to proceed with the rapid rail project.
  3. Administrative: The ID badge you must wear inside the building.

It would be very helpful if all government rules were so labeled, and their origins delineated. Yes, many regulations were mandated by statute, but I've seen many a regulation that seemed to be a redheaded stepchild of its parent law.

The Code of Federal Regulations is online now, but it is really only "accessible" to attorneys and the truly dedicated. Here, for example, are the delegations of authority from the secretary of transportation to the head of the Federal Aviation Administration. When you get to redelegations by the Assistant Secretary for Administration, you know you're in the weeds.

If we want more responsive government in an age of disintermediation, we need rules and regulations both tagged and accessible by everyone, up and down the management chain. We need a hyperlinked Wikipedia of rules and regulations. That would be a great first step.

The second step is already with us: the increased and rapidly increasing transparency of governmental activities. I used to say to senior officials, especially political appointees, "How would this look on the front page of the Washington Post?" This often affected their decision making. If everyone and anyone can find out what government officials have done, and also what they should have done, then we can afford to vest more discretion in them. That would be step three.

A story: In the mid-1990s, I got to start up the Bureau of Transportation Statistics at the Department of Transportation. One day I got a memo from the Assistant Secretary for Administration, telling me that too much time was being wasted by department staff on this new "Internet" thing, and henceforth no one would be allowed to exchange e-mail with anyone outside the department, and no one was to go off searching websites unrelated to their duties. Even in the absence of Ashby's Law of Requisite Variety, this wouldn't be a good idea. We would have been locked into our silos. I wrote back that I would not be enforcing this directive, since BTS was heavily invested in the new technology and I needed the staff to be expert in its use. I never heard a word back.

The key here is that I was willing to put my name on my decision not to obey a directive, and the informal system at DOT didn't question that decision. If we had more rules and regulations that were labeled as guidelines, or were identified as optional if a senior official notified so-and-so in writing, we could make the system work better, faster, cheaper. And with a little transparency, anyone who cared to could find out all about it.