Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, August 14, 1995 TAG: 9508140113
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: MIKE HUDSON STAFF WRITER
DATELINE: LENGTH: Medium
Howard, a University of Virginia law alumnus who has become a leading spokesman for "regulatory reform," believes the Republican-backed bill would allow businesses and environmental activists alike to tie up federal rules in endless court battles.
"Nothing will get done," Howard said in a telephone interview. "Washington will be more paralyzed than it is today."
Businesses will sue to stop any rules they don't like. And, Howard said, Ralph Nader and other environmental and consumer activists will jump in and sue to try to save them.
"So we're going to get stuck with this inept system that we have now," he said.
Howard hastens to add that he approves of the thrust of the bill sponsored by Senate Majority Leader Bob Dole.
"There are some good things about it," Howard said. "There are some bad things about it. Overall, I don't think it's helpful."
Dole, R-Kan., wants require that government agencies emphasize "cost-benefit analyses" when they write regulations.
Howard said he believes Dole genuinely wants to bring common sense to the regulatory process and is not - as some critics have charged - trying to curry favor with big business.
"I think the basic idea of the bill is sound," he said, but "it needs to be simplified dramatically."
Howard said he has talked to Dole and other senators about his concerns, but he understands it's difficult for them to change directions once they've head down one path.
A Dole spokesman said Howard's concerns "have already been dealt with." The spokesman said Dole's bill has been changed so that it restricts court review only to final rulemaking, something that already is allowed under current law.
Howard says that change won't make much difference. Dole's bill still "clearly leans in the direction of allowing people to fight it out in the courts over all sorts of grounds."
Howard, a corporate attorney in New York, says he wrote his book after becoming concerned that a dizzying proliferation of laws and regulations were hurting America. Bureaucrats and legislators have written so many rules with so many specific requirements, he argues, that people no longer have room to use their common sense.
Since it came out this spring, "The Death of Common Sense" has been a best-seller and has made the Howard a media and political star.
Dole, President Clinton and other politicians have sought Howard's views - and invoked them to support their proposals. U.S. Senator Charles Robb, a fellow UVa law alumnus, cites Howard's book as a good source on the failures of the regulatory system.
Under the Dole bill, many federal agencies would be required to weigh how much it costs businesses to comply with a regulation vs. the estimated dollar value of the benefits it produces. If the cost exceeds the benefit, then the rule would have to be thrown out. Businesses would have broad powers to go to court to challenge both old and new rules.
In Howard's view, cost-benefit tests are important tools for deciding whether a rule makes sense. But, he said, "they don't themselves decide the question."
It's impossible to put a dollar figure on the value of educating disabled children, for instance. The decision is a value judgment. You can say these things are important, he said, but you can't say we should do them no matter what the cost.
Instead of allowing bureaucrats to hide behind rigid rules, Howard said, the regulators should be freed to make these judgments. Then, he said, their decisions should be "second-guessed" by Congress, which in turn should be held accountable by voters.
As it is now, he said, these decisions are made under pressure from "lobbyists sort of skirting around the corners like rats. Everything is done in the dark in Washington."
Howard would rather rules be made by someone he disagrees with - as long as it's done in the open "so that I can attack them."
It won't help to throw these decisions into the courts, Howard said.
Unfortunately, he said, there are many conservatives who would be happy if the government were simply stalled ankle-deep in a swamp of litigation.
In the end, Howard said, the problem with the system is that it doesn't keep costs down or protect people and the environment.
He said liberals get mired in this argument: "You're just trying to do special favors for big business and if you do this you'll be killing children."
Conservatives respond this way: "You're trying to bring down the American economy. We need jobs. Government gets in the way. Let's get rid of it."
Both arguments, Howard said, smack of paranoia.
"Nobody wants to kill children," he said. "And nobody wants to get rid of government. Because who's going to protect the environment? Companies aren't going to do that on their own."
by CNB