How Would You Change Regulation?

Monday, September 19, 2011

U.S, Sen Lindsay Graham (R-SC) speaks during a press conference on National Labor Relations Board regulations on Capitol Hill September 14, 2011 in Washington, DC. (Getty)

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, founder and chair of Common Good and author of The Death of Common Sense: How Law Is Suffocating America, Philip K. Howard, offered ideas for writing regulations that protect without stifling innovation.

'You can't just deregulate'

When Republicans talk job creation, they usually talk deregulation. Indeed, Philip Howard said regulations drive small businesses crazy, as they struggle to keep up with a litany of rules that can get as specific as telling you exactly how to lay out your factory.

It's not that regulation is necessarily bad, cautioned Howard, who called it necessary in a "global, anonymous" economy. It's just that we don't have the right kind of regulatory structure. Those who want to throw the baby out with the bathwater aren't looking down the road.

They're just going for short term economic benefits for whomever, but unfortunately they have longer term economic costs...You can't just 'deregulate' and solve the problem, nor can you do what Obama has suggested, which is prune stupid regulations.

Quality, not quantity

Having no regulation is bad, but having more regulation—even the amount we have now—isn't better. Howard pointed out that the Occupational Safety and Health Administration (OSHA), for all its rules protecting workers, has no discernible effect on workplace safety. Paradoxically, it is perhaps because there are so many rules that they don't do any good.

No one could possibly know every rule, and that's one of the problems with it...The rules are so dense that literally no one can comply with them. If you're a mean-spirited government inspector, you can find non-compliance in any workplace, in any home in America.

Re-humanizing regulation

Instead of writing rules that are easy to implement, and create safe conditions (not headaches), we try to control every aspect of workers' and businesses' lives, Howard said. That diverts "massive amounts of energy" from focusing on a sensible approach to safety—one doesn't need a rule to tell them they should keep stairways lit, and a regulator doesn't need the rule to see that such a condition would be unsafe, according to Howard.

We need to rehumanize regulation, give people responsibility and bounded authority to government officials and have an imperfect world that at least is focused on the ultimate goal.


Philip K. Howard


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Comments [28]

Bonnie from New Jersey

The issue of special education is not as much about regulation, as it is that IDEA is not adequately funded by the government.

Sep. 23 2011 12:00 PM
Edward from NJ

Philip K. Howard works from the assumption that people are sensible and won't try to take advantage of any vagueness in regulations.
He also assumes that "common sense" will always lead to a good outcome for all. A greatly simplified example: A factory generates $10 million per year in revenue. There's one worker death annually. It costs the company $1 million to compensate the worker's family. Fixing various safety issues would eliminate the death and reduce annual revenue to $8 million. What does "common sense" dictate?

Sep. 19 2011 12:06 PM
Tim from NJ

I caught the end of this piece this morning and was surprised to hear your guest suggest wheelchair accessable bathrooms at the top of ski mountains are unneccessary. I've been using a wheelchair for 25 years and skiing for 20 of them. I was quite happy to find Vail has wheelchairs and accessable bathrooms at the tops of their mountains and wish more ski areas would follow their lead.
My understanding is most modifications to accomodate wheelchairs are not expensive, particularly if they incorporated into the design early. This isn't really some utopian vision, just common sense. We will all age, and become increasingly disabled to some degree.

I usually find your guests thoughtfule and well informed regarding their subject matter. In this case, not so much.

Sep. 19 2011 11:44 AM

Sorry, just one other point -- our regulatory process (at least at the federal and city levels; I can't speak to the state level) already allows for extensive input by industry, consumers and all other stakeholders. The implication that "bureaucrats" write and pass regulations in a vacuum is false.

Sep. 19 2011 11:17 AM
Peter Harris from Manhattan

@Nick from UWS
So lets have a discussion on "specious and gratuitous over regulation" as well as "profit-driven litigation" (what litigation isn't??).
But lets not have a speaker that trots out a simplistic and crass line.
We simply don't have media willing to present a thoughtful debate, even it seems WNYC.
How disappointing.

Sep. 19 2011 11:15 AM

Many below make excellent points. I'm a former government lawyer and saw firsthand the process of writing and enforcing provisions regulating businesses. I am by no means a cheerleader for all regulations. However, I also find it frightening when people go in and look at regulations, lacking any industry expertise or context, and proclaim them "stupid." Many regs that might look stupid to the untrained eye may actually have excellent reasons for existing. I'm not saying we should always blindly accept existing regulations -- many may have been important when created but are now obsolete due to changed technologies or industry practices, or may be out of step with changed societal views -- but we do need to do our homework before jettisoning them. Look at the legislative history, talk to regulators who were around when the provisions were created, etc. -- get some context. It may be that the provision now appears "stupid" because it has done such a good job of eliminating a problem that no one is even aware the problem ever existed. That is to say, the apparent stupidity of a provision may actually demonstrate its efficacy!
I tuned in late to the segment and don't know if this was mentioned, but I quickly googled this guest and also see he's a big advocate of tort reform. Another terrible idea, particularly in combination with reducing regulation. What this guy really wants is a field day for businesses! Why not bring back child labor while we're at it? Having been on the inside, I've seen just how inadequate government regulation is, even in its current state, to keeping businesses honest. Government agencies do not have the resources to enforce the laws and regs on the books. Citizens need access to the courts to keep businesses accountable.
I say, if you're going to cut regs, then EXPAND the court system and make it easier for people to sue. OR, if you want to put up more barriers to civil justice, throw money at government agencies so they can step up enforcement. You cannot tie regulators' hands at the same time you limit access to the courts. A commenter below mentioned the Triangle Shirtwaist incident -- this guest is begging for more of those.

Sep. 19 2011 11:12 AM
Howard Edelman

On the comment that education costs for special needs kids costs much more than what we spend on "gifted" students. He thought this is unfair or not appropriate. I guess he would like to also blame the parents of the special needs kids for their "bad genes" - a trend many would like to promote. Then maybe we would not have to spend public funds on those with special needs - after all, as the speacker said, we can't make everything perfect.
I believe this is an important part of the safety net and also a good investment in the long run!

Sep. 19 2011 11:01 AM
Nick from UWS

Yet, the topic of specious and gratuitous over regulation and profit-driven litigation is a very valid and important one.

Sep. 19 2011 11:00 AM
Nick from UWS

@Ansje from Brooklyn:

Well HEELED. Well HEELED companies and individuals.

Sep. 19 2011 10:54 AM
Peter Harris from Manhattan

Bad segment - bad premise. What to some may seem "common sense" is a loophole to lawyers. Regulation that is specific is generally driven by a specific case where people have been injured or died, rather than "some bureaucrat making up regulations". Corporations aren't "diverted" by regulations, but are focussed by regulations. No regulation mean that if the cost of keeping someone safe is more than the cost if it all goes wrong - they will not use "common sense".

Sep. 19 2011 10:52 AM

The guest commented on disability regulations, saying that not all apartments should have wheelchair accessible kitchens. But no one intends to become disabled.

When I moved into my apartment 40 years ago, I was not disabled - and didn't think about it. Now I need a wheelchair. Fortunately, my apartment is wheelchair accessible. Had I needed to move into one, however, I would have had to wait years.

When my husband and I had our wedding dinner decades ago, I was not disabled - and the ADA rules for accessible bathrooms did not exist. Later, I needed an accessible bathroom; the same restaurant installed one - but in fact used it to store linens and extra chairs. So my husband and I could no longer go back for our anniversaries.

Sep. 19 2011 10:51 AM
DarkSymbolist from NYC!


Exactly and I feel like a child would know this and yet Brian has this guy on as if he has some kind of valid point or something profound to say. Why give this kind of stupidity a voice? I just don't get it, I really, really don't....

Sep. 19 2011 10:50 AM

For an expert who has written a book on this topic, I was somewhat disappointed in the examples the author used to indicate unnecessary regulations.

Lighting stairwells? There's even a question as to whether it should be regulated? Were it up to some building owners, businesses, even the level of lighting would be so low as to be worthless or dangerous.

And my earlier question should have read:

Did the guest support repeal OF Glass Steagal Act?

Sep. 19 2011 10:50 AM
Ansje from Brooklyn

It would be great to have very general regulations with values like, "stairways should be safe and well-lit." The problem is that corporations with more money than the average citizen find it less expensive to file lawsuits and tie up their regulatory compliance in court than to actually make things safe. As someone who has worked on writing regulations, you need to give compliance officers specific tools to be able to use to ensure that companies act in the public interest and not just in the interest of their bottom line. Otherwise, it is just too easy for well healed companies and individuals to fight while continuing to pollute or provide unsafe conditions.

Sep. 19 2011 10:48 AM
DarkSymbolist from NYC!

Why does Brian continue to have these simple-minded morons on the show? He makes simplistic points that collapse under any intelligent scrutiny.

There are billions of examples of how corporations take advantage when there are either vague regulations or a lack of regulations. Come on,already. Do we really want to take this country back to the early 20th century? Get real already.

Sep. 19 2011 10:47 AM
John A.

Staten Island,
You're aware that what we think means less because we're marginalizable New Yorkers, and the Republicans feel very confident on the federal stage with their 2 or 3 pre-programmed messages.

Sep. 19 2011 10:45 AM
jim from nj

The reason all these "miniscule" regulations exist is precisely BECAUSE business fight the practical common sense regulation. What and who and which is the mechanism that these "common sense" regulations would be implemented??
If common sense was the magic bullet this conversation wouldn't be needed.
And so, regulators are reduced to try and address safety by edges. The guest talks about the "idea" of a regulating to a "perfect world", he is the naive one thinking this would happen just by common sense.

Sep. 19 2011 10:44 AM

Did the guest support repeal Glass Steagal Act?

How'd that work out for us?

Sep. 19 2011 10:44 AM
DarkSymbolist from NYC!

@Come On

I couldn't agree more. It's just the usual, simplistic Republican sound bite friendly kind of phrase that boils down a complex issue into simple black and white. And the media eats it up and promotes their idiotic rhetoric while they continue to kill our country with their obstruction and policies.

It's disgusting and I can't listen to it anymore

Sep. 19 2011 10:42 AM
Ken from Little Neck

While I appreciate what your guest is advocating, I don't think it would work when put into practice. Making regulations simpler and more general sounds great, but corporations already spend millions or billions of dollars on lawyers trying to figure out how to get around regulations as they stand now. It would be much easier to fight a general regulation than a very specific one.

Sep. 19 2011 10:42 AM
Nick from UWS

You only have to think of the Triangle Shirtwaist fire to see what happens when safety regulations are not spelled out.

Sep. 19 2011 10:42 AM
LizonLI from Long Island

The reason regulations are specific today is because if they are general a company can take a citation to court and say - the rule doesn't say that. The companies who have fought regulation of unsafe working places, whether mines or back offices or banks have forced the regulations to specificity.

Sep. 19 2011 10:42 AM
sheldon from Brooklyn

Ah, yes - as we just observed the 10th anniversary of 9/11, hearing someone say that requiring stairwells to be lit as frivolous, is disturbing.

Sep. 19 2011 10:41 AM
Robear from Brooklyn

yes, please have light in the staircase. This regulation saves thousands of lives every year. Bad choice. Try again

Sep. 19 2011 10:41 AM
Robear from Brooklyn

yes, please have light in the staircase. This regulation saves thousands of lives every year. Bad choice. Try again

Sep. 19 2011 10:40 AM
Loarx from nj

of course we can trust big business, the dotcom bust, the mortage bust, the savings and loan bust was just a figment of our immagination, it was caused by all the regulation..
also, can we remind folks what the hudson river and other rivers were like before the clean water act?
how about Love Canal? or the needles and medical waste washing up on the east coast? or the clear cutting of huge swaths of forest land?

Sep. 19 2011 10:38 AM
Come on. from Staten Island

When I hear the phrase "job killing" my eyes glaze over. "Job *killing*"? The parlance is so childish, I have trouble listening to this anymore.

Sep. 19 2011 10:32 AM
taxLawyer from Canada

The Treasury regulation in the mid 1990s by the Clinton Treasury Dept promulgated the "CTB" Check the Box rule.

This regulation allowed some corporations be taxed in any way they chose, as pas throughs.

This Check The Box has led to much tax abuse. Ask any international tax lawyer.

Sep. 19 2011 10:30 AM

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