September 1, 2014

Rules

John F. Berry | 6/1/1995
What is it about government that absolutely drives you nuts? If you're a business person, chances are it's all the rules and bureaucracy that government produces.

At least that's what's reported in the polls taken by such eminent business organizations as the Florida Chamber of Commerce. A 1993 survey of business managers showed that 83% consider government regulation and bureaucracy as the key obstacle to profitability in their business. The message was simple and direct: Get rid of the red tape and business would operate much better.

Cutting through rules and regulations has been a statewide obsession in recent years. In August 1993, Florida Trend published a much discussed cover story titled "Buried Alive: The Red Tape Tax Is Killing Florida Business." Governor Lawton Chiles made a pledge to voters that he would cut 50% of the rules and regulations during his second term.

So how does one explain the findings of Trend's man in Tallahassee, John McKinnon, in his usually thoughtful column (pg. 42)?

McKinnon writes that business lobbyists have been pushing for more, not fewer, rules: "They came to believe that if they forced agencies to adopt more formal rules in controversial programs like growth management, they and their business clients could restrict the reach of those programs by litigating the new rules. Even if they didn't succeed in stopping the programs they didn't like, they figured they could slow them down."

Call it the politics of rule bashing. Outwardly, most attorneys and lobbyists in Tallahassee moan and rail on behalf of their clients against the rules that have grown out of control in recent years. The Florida Chamber has a much-ballyhooed campaign against them, conferring its "No-Biz" awards on particularly obstructionist bureaucrats and bureaucracies. One went to "Florida's entire rule-making system."

But in the real world of Tallahassee politics, the Chamber's chief lobbyist on this issue, Wade Hopping, advocates a go-slow approach to reforming the 1991 "required rule-making" law that has accounted for the surge in rule making ever since. The 1991 law is what one Tallahassee bureaucrat describes as "the mother of all rules."

Wade Hopping is not alone in his reluctance to upset the rule-making procedures. "We have been trying to slow this train down about abolishing rules," says Jon Shebel, CEO of Associated Industries of Florida, the state's largest business trade group representing many of the same companies.

"It's like a football game," explains Shebel. "Would you rather play where everyone knows the rules or where the guys in the striped shirts call them as you go along? That's the way it used to be."

But Shebel says that many administrative lawyers and lobbyists in Tallahassee go even further than simply trying to maintain the rule-making structure; for them, the more rules there are, the richer they become. "There are a lot of people in this town who make a lot of money because there are these rules," says Shebel.

To be sure, the obsession over reducing rules and regulations is not just a Florida phenomenon, as witnessed by many of the provisions of the Republican's "Contract With America." A book dealing with rules and red tape, Philip K. Howard's "The Death of Common Sense" has been a national best-seller for months.

Like many proponents of simplifying the current rule-making, Howard's book is long on rhetoric and anecdotal evidence of the evils of too many rules and short on solutions. He suggests, for example, we should return to good old common-law days, but he ignores the fact that modern statutes and rules were designed to reduce the litigation that grew out of common law's vagaries.

No matter, Governor Chiles recommends the book to anyone within earshot. And just to show how serious he is about slashing rules, he even created a Director of Rule Reduction. When I met the governor's rule reducer, David Maloney, at a recent reception in the governor's mansion, he was grasping a copy of Howard's book, almost as if displaying it was part of his job. But while Maloney allows that he found the book "helpful," he makes it clear that from his bruising experience fighting in the rule-making trenches that he knows the answers to the monstrous problem can't all be found in the little text.

Maloney agrees with Shebel's view that there are plenty of lawyers and lobbyists who have a stake in the continued proliferation of rules. "I've come to view that the folks who need the rules most are the administrative lawyers," he says, "so they can tell their clients what they can do for them."

He doesn't see much rule-making reform coming from the Legislature, either. "In my opinion, they're not doing anything to change the way things are done."

And what about business people, purportedly the most outspoken enemies of the government rule-making bureaucracy? Well, even there the situation isn't as clear-cut as all the sturm und drang would suggest.

"Small business wants to do away with red tape," says Maloney. "Big business, which has the resources to make its way through the morass, actually likes the status quo."

Some critics have said that the governor's rule-fighter has succeeded in doing away only with some outdated rules that had fallen into desuetude anyhow. Maloney acknowledges that it's a slow process and requires agencies to change the way they function - a very difficult task for a bureaucracy. "We could get a tremendous number of rules knocked off the books and declare victory," he says, "but that wouldn't do much good."

But what has really frustrated the effort is a rule in the 1991 law that says to repeal a rule itself requires a rule. "That's an 'Alice In Wonderland' kind of thing, isn't it?" asks Maloney.

Indeed it is, yet nothing is as it seems in the looking glass war against rules.

Tags: Florida Small Business, Politics & Law, Business Florida

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