The Plain Regulations Act, HR 3786: Making Federal Regulations Accessible

On January 18, Congressman Bruce Braley (D-Iowa) introduced the Plain Regulations Act. Braley also introduced the Plain Writing Act, which became law on October 13, 2010, with strong bipartisan support. The original draft of that Act had covered regulations, but the provision was deleted during the legislative process because of opposition from several sources.

These same reasons are certain to resurface. Let’s examine them:

Criticism 1–A law requiring regulations to be written in plain language would be used to slow down or derail the regulatory process by those who oppose government’s role in regulating.

Currently, many poorly written regulations languish on policymakers’ desks awaiting an explanation. Then they are further delayed at the Office of Management and Budget while OMB examiners ask for explanations or clarification from the agency.

So rather than delaying regulations, the Plain Regulations Act will probably speed up the regulatory process because plain-language regulations are easier to review. Since the structure and language are clearer, it’s easier to tell that the underlying reasoning is sound and that the regulation is both complete and accurate. The same characteristics that make a plain-language regulation easier for the regulated community to read and comprehend make it easier for the reviewers as well.

Besides, someone intent on delaying a regulation has many more powerful tools to use, such as demanding additional analyses under the Paperwork Reduction Act, Executive Order 12866, and the Regulatory Flexibility Act. Demands for additional economic analysis under one of these authorities are a much more effective delaying tactic.

And if regulations are delayed for lack of clarity, the remedy will be straightforward, unlike in cases of delay for one of these other reasons. Remedying the plain language will take much less time than performing additional economic analyses and will result in a superior product that causes fewer problems for everyone.

Criticism 2– It’s impossible to measure compliance with the plain-language requirement. Measurement will further tie up the regulatory process.

There are three simple ways to check a regulation for clarity:

1.  use software to spot obvious flaws,

2.  use a checklist to catch problems with organization and flow, and

3.  have a colleague review the edited product.

Readily available software that’s part of most word-processing programs, or more sophisticated free-standing programs such as Stylewriter or Visible Thread, will identify fundamental problems like sentence length and passive voice. The Federal Plain Language Guidelines[1] or other document checklists[2] are handy tools for reviewing other issues. And a final review by a fresh pair of eyes should already be part of writing any rule.

The gold standard for testing a document’s clarity is to test the draft with a sample of the public affected by the regulations. While that won’t usually be possible with regulations, comments from the regulations.gov website will serve as a good substitute. Giving the public the right to demand clarity in rulemaking documents should result in more plain-language comments on draft regulations. And with the ready availability of simple and cheap on-line surveying software such as Survey Monkey, it is possible to conduct some simple tests of regulatory language.

Finally, long-term public reaction to the regulation will show whether it communicates clearly. Does the agency get fewer questions about the regulations? Is the compliance rate higher? Are required forms filled out more completely and correctly? In the 1980s, when the FCC wrote the first plain-language regulation (on citizens’ band radios), the number of calls to the agency declined significantly. The agency moved all five staff members who had been answering public questions to other jobs.

Criticism 3–Plain language is imprecise.

 

Much of what plain language proposes has nothing to do with precision. “In the event of default on the part of the buyer” is no more precise than “if the buyer defaults.” Long, complicated sentences crammed with clauses and conditions don’t make a complicated idea clearer. Proponents have demonstrated time and again that the verbose, convoluted traditional style of legal writing is unnecessary. You can see many examples on the plainlanguage.gov website.[3]

While there are no simple alternatives for terms like “good cause” and “reasonable doubt,” terms of art are a tiny part of any legal document—less than 3 percent in one study.[4] The rest can be written in plain language, and even technical terms can often be translated into plain language with just a few extra words.

If anything, as legal-writing expert Joseph Kimble points out, plain language is more precise than old-style legalese because it lays bare all the confusion and uncertainty that legalese tends to hide.[5] Anyone who has had experience writing in plain language knows that to be true.

Criticism 4–It’s too hard to write regulations in plain language.

 

We hear this complaint from executive branch attorneys who have spent their careers writing in the traditional federal bureaucratic style.

It is hard to write in plain language, without question. Explaining complex legal and technical provisions clearly is a challenge—whether it’s in the traditional cumbersome style or in plain language. But since several plain-language regulations have already been codified,[6] clearly at least some federal attorneys can cope with the challenge.

What’s more, while writing plainly may be hard work, it’s not as hard as deciphering unclear language. Spending time at the drafting stage to ensure that regulations are clear saves more people more time and money and helps avoid litigation over the meaning of a regulation. So it’s likely that the up-front costs of writing in plain language will be repaid many times over by the savings, not only to the regulated community but also to the agencies themselves. In a forthcoming book, Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law, Professor Kimble summarizes 52 studies demonstrating the extraordinary benefits—including time and money saved—from communicating in plain language. Everybody wins.

Finally, there is a simple moral imperative: citizens have a right to be able to understand the regulations that govern their lives. And the government has a corresponding duty to write those regulations in plain language.

Guest Blog by Annetta Cheek and Joe Kimble: to be published in the Michigan Bar Journal, Summer 2012


[1] http://www.plainlanguage.gov/howto/guidelines/FederalPLGuidelines/TOC.cfm

[2] http://www.plainlanguage.gov/howto/quickreference/checklist.cfm

[3] http://www.plainlanguage.gov/examples/before_after/index.cfm. See also Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure, 12 Scribes Journal of Legal Writing 25 (2008-2009).

[4] Joseph Kimble, Answering the Critics of Plain Language, http://www.plainlanguagenetwork.org/kimble/critics.htm, Footnote 14 (citing articles in The Michigan Bar Journal and The Scribes Journal of Legal Writing).

[5]Writing for Dollars, Writing to Please, http.plalinlangugenetwork.org/kimble/dollars.htm, page 2.

[6] http://www.plainlanguage.gov/usingPL/government/regstable.cfm

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