Ahh, the folk rituals of Washington. In this case, though, a ritual with results. ““The Death of Common Sense’’ has proved the catalyst for a rare convergence of Republican and Democratic thinking in this year of the Contract. It may even lead to a practical reform of some use to civilians: an alleviation of the gazillion stupid, petty regulations, and accompanying paperwork, that plague American businesses – and a shift in the poisonous bureaucratic presumption that a business is guilty until proven innocent.
The road to enlightenment may have begun for Bill Clinton with a visit from Newt Gingrich in early January. Gingrich asked if the president would support the House’s rather extreme notion of a one-year moratorium on all new government regulations. The president mulled, wriggled, then allowed that it might be too blunt an instrument. ““Great!’’ Gingrich replied. ““If you’re not going to be for it and veto it, that’s even better.’’ Gingrich was probably overplaying his hand. The moratorium isn’t likely to pass the Senate. But no matter: the president careened into action, searching for a more reasonable alternative.
He did not have to search far. Al Gore’s ““reinventing government’’ team had already found a Regulatory Reform Poster Child – D. Lynn Gordon, the U.S. Customs director in Miami. She had brought joy to businessmen in South Florida by insisting that her inspectors help companies figure out ways to comply with regulations, rather than prosecuting first and answering questions later. ““We decided to get away from the great regulatory sport,’’ Gordon says, ““which was seizing goods and issuing penalties just to keep our numbers up.’’ Gordon is a cheerful, compelling figure with a stock of wild stories – like the company that had to fill out 700,000 forms per year (she reduced it to one a month) – and Gore began sending her around to educate the heathen at various federal regulatory agencies, preaching a doctrine of reason and flexibility. But nothing much was changing.
Gingrich’s threat added some urgency, as did the publication of ““The Death of Common Sense,’’ which took a unique, radical-middle path toward reform. ““I wanted to figure out why everyone who deals with the government has the same basic reaction – anger, frustration,’’ Philip Howard says. ““I decided that it’s because we’ve banned judgment.’’ The theory was: if the government could stipulate every possible regulatory circumstance, a robotic army of inspectors could go out and enforce the rules. The trouble is, all circumstances are different. No one rule fits all. Howard believes there have to be standards – for clean air and water, safe food and drugs. But the numbing effort to specify precisely what constitutes safety, or how standards should be met, is an exercise in litigious lunacy. If the critique was familiar to conservatives, Howard’s solution wasn’t: a counterintuitive plea for more power for bureaucrats – they should be able to use their discretion, as Lynn Gordon’s inspectors did in Miami, to help businesses comply with the law.
Bill Clinton moved to enshrine this principle last week, announcing a package of regulatory reforms that removed the presumption of guilt from small businesses, reduced their paperwork, abolished a scad of regulations – and, in a touch that Phil Howard particularly liked, set up a pilot program in the Environmental Protection Agency that would allow companies to ““toss out the rule book’’ and negotiate their own paths to clean air and water compliance. More reforms are promised soon. ““Hey, this sounds pretty good,’’ said Rep. Dave McIntosh, the Republican leading Gingrich’s regulatory-reform gang. ““I take it as a compliment that the administration has chosen to move in our direction.’’ And he should: Clinton would’ve never found the will to challenge the bureaucracy if Gingrich hadn’t challenged him first. But the president’s move may also marginalize the congressional Republicans, who are now fomenting intricate ways to impede the passage of new regulations – a form of vengeance that will be less satisfying if the bureaucratic heathen are successfully re-educated (maybe even – heaven forfend – made user-friendly). That won’t happen overnight, but Philip K. Howard could take credit for a freak fortuity in Washington last week: for once, common sense was selling.
