A 'Dumb' Government

In January 1986, I went to work for U.S. Education Secretary William J. Bennett as Deputy General Counsel for Regulations and Legislation. My job was to oversee the Education Department's proposed rules and legislation. Appointed by President Ronald Reagan, Bennett was an ardent deregulator who felt that his department issued far too many complex, costly rules. The Department's "customers" were teachers, schools, colleges, universities, and students. Bennett, he wanted to free these customers from regulatory clutter wherever possible.

At Bennett's request, I chaired a Departmental working group called the Regulatory Review Task Force. In retrospect, it should have been called the Deregulatory Review Task Force, because the mission was to streamline, simplify, and eliminate complexity in new regulations and legislative proposals.

Before becoming effective, most federal regulations are by law subject to public review and comment under the federal Administrative Procedure Act. Legislation takes effect upon Congressional approval and the president's signature. Both processes can be long and cumbersome.

The Task Force had been meeting for several months when it occurred to me that perhaps an unconventional approach might make a difference. While the group would continue its efforts to reduce new regulations, was it possible to clean out the Department's regulatory underbrush without jumping the formal regulatory and legislative hurdles?

At the end of one Task Force meeting, I suggested something that startled many Task Force members: at our next gathering, each member should bring along an example of a "dumb thing" their office did that could be eliminated without a legislative fix or a regulatory change. In short, find examples of internal, discretionary procedures that could be halted immediately in order to streamline the Department's activities and promote greater efficiency for our "customers."

The reaction was immediate: silence plus shocked faces. One person said, "OK. I think I get it. You want us to come back next week and basically rat on ourselves? Why would we do that?" From a bureaucratic perspective, my suggestion required a degree of introspection, self-evaluation -- and courage -- not typically found in large government bureaucracies. Employee performance evaluations are geared towards emphasizing what's working, not what's failing. All bureaucracies are risk-averse.

There was also concern that this exercise might invite deeper scrutiny by the Office of the Inspector General (also represented on the Task Force). These reactions were predictable, so I responded: "I understand your fears, so let me go first." I gave at least two examples of "dumb things" that we did in the General Counsel's Office that we could stop doing immediately.

People left the meeting skeptical, but at the next Task Force meeting, a few members provided examples of "dumb things" that they intended to stop. The Inspector General's representative gave no indication of any forthcoming inquisition, and the next several meetings yielded more and more examples. After some months, as people realized that their performance evaluations -- and their jobs -- were not on the line, there was even a sense of enthusiasm for the effort. We reduced significantly many unnecessary administrative procedures and streamlined many internal Departmental practices.

Left unchecked, government bureaucracies will err on the side of expansiveness. That is their nature; they cannot help themselves. Some years later, when I was working in the White House, I received complaints about a proposed Treasury Department regulation designed to implement a statute addressing the highly technical issue of non-discrimination in pension plans. The statutory text was one sentence; the proposed implementing rule ran to some 600 pages. I didn't have time to read this regulatory "War and Peace" but decided to call the appropriate Treasury official with this suggestion: can't you at least cut the number of pages in half?

I no longer recall the outcome, but a few years after leaving government, at a reception, I met the career Treasury official who had drafted the initial 600-page proposed rule. He was neither a bad person nor a Communist intent on bringing the Republic to its knees. He was simply doing his job, toiling away alone in the bowels of the Treasury or Internal Revenue Service. He had never worked in the private sector and had not considered the practical, immediate impact of his masterpiece.

Lawyers who bill by the hour appreciate incentives, and like accountants, lawyers relish complexity. When you're paid $600 per hour, two things follow: more pages to read are better than fewer pages, and there's a massive incentive to be an extremely slow reader. A 600-page regulation on pension plan nondiscrimination is catnip to lawyers and accountants who specialize in such arcane, complex rules. First, they have to read and understand the rule. Next, they will involve associate attorneys, paralegals, and junior accountants to help draft internal memoranda that, ultimately, will be reworked as advice memos for existing clients or to solicit new clients. That's how the system works and how the game is played.

Our new president wants to "drain the swamp" of Washington. He believes that reducing regulations will promote greater economic growth. Over the coming months and years, this effort will take several shapes. Some efforts will require Congressional action; others will require notice-and-comment rulemaking. (Repealing Obamacare will probably require a little of both.)

As these efforts evolve, the new president's cabinet and agencies should consider Bill Bennett's example and take a closer look at their own department and agency internal practices and reduce the clutter. This approach is neither conservative nor liberal: it is good government that should be practiced by all administrations, Democratic and Republican.

We want a government that works effectively and efficiently for all Americans and not just the people who staff our government or the cottage industries that feed off it.

Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990-1992 in the George H.W. Bush White House. He was president of the French-American Foundation - United States from 2012-2014 and was president of the Committee for Economic Development from 1997-2012.