What follows takes off directly from yesterday’s comment. If it seems familiar to a few of you, that’s because it’s from an op-ed I had in The Wall Street Journal a while back. Forgive my reprising it here. But until we get this law, I can’t shut up about it. (Feel free to “clip” this and send it to anyone you like — permission hereby granted!)

The Don’t Be Ridiculous Law
by Andrew Tobias

It’s a matter of no small chagrin that my two most successful books were written by other people.

The first was Indecent Exposure, by David McClintick, in 1982. It hit #1 on the New York Times best-seller list, and my name was prominently on the front. I had the lead blurb. I had a book of my own out then, but I quickly learned that when friends called all excited to tell me they’d seen “my book,” they didn’t mean my book at all. They meant Indecent Exposure.

My second big success is out now. It climbed to #3 on the list (the best I’ve ever done is #4), and, again, I had the lead blurb.

I am very proud of this, because it is an important book: The Death Of Common Sense, by Philip Howard. And it’s having an impact. Florida Governor Lawton Chiles bought 200 copies with his own money and has vowed to cut Florida’s 28,000 regulations in half. President Clinton waved the book around at a press conference and reemphasized his commitment to reinventing government.

It is a slim volume filled with anecdotes that suggest we’ve lost our minds. The quick example everyone uses: When Mother Theresa tried to renovate an abandoned building in the Bronx to be used as a homeless shelter, she met two years of opposition and finally had to give it up because she couldn’t afford to install an elevator for the handicapped homeless. Surely, society would have been better served had the nuns been granted a waiver, but rules is rules and, well, you get the idea.

I once had to spend $600 to build a three-foot staircase to allow direct access to a fuse box. It could easily be reached by leaning a little to the left from the existing concrete stairs, or by grabbing a step-ladder; but the inspector insisted on stairs. We should build them, pass inspection, and then get rid of them, if we liked, he said. Rules is rules.

The problem with the book that some reviewers have noted: it’s long on frustration but short on solutions.

In fact, the book does point clearly at a solution. Namely, that, where reasonable, we write objectives, not rules, and allow regulators and inspectors to use their judgment in meeting those objectives in the most sensible way.

But if that’s a little vague, let me suggest something specific.

What we need, simply, is Congress (and each Statehouse) to pass a “Don’t Be RIDICULOUS” Law. Oh, it could be called something more formal, but here’s what it would say: When something is just patently stupid, you wouldn’t have to do it. Every government agency would have to enact Don’t Be Ridiculous guidelines — or give a convincing excuse why not.

For example, the banking regulators would say that any bank can waive any government requirement that is patently, in the circumstances, ridiculous. If you owned the Sears Tower, free and clear, and wanted to borrow $5 million against it, the bank would have the right to make that loan without an appraisal. Right now, it can’t.

Or if you owned a toxic waste site that could be made into a perfectly safe parking lot for $15 million, but that would cost $500 million to be made suitable for cows to graze and produce milk for children, you’d be allowed to pave it over — and without ten years of legal fees.

Or if you were a federal judge faced with mandatory sentencing guidelines you were certain, in this particular case, were grotesquely unfair, you would be allowed to exercise some judgment.

Or if you were nuns trying to turn an abandoned building into a homeless shelter, you could get a DBR waiver to do it without installing an elevator.

There would be safeguards. In the case of banking, no one DBR waiver could exceed, say, 2% of the bank’s capital, and the sum of all could not exceed 60% — so that even if the bank had been wrong in every single instance, its solvency would still not be threatened. And the auditors, when they showed up every year or two, would scrutinize a random sampling of these DBRs to be sure they were not being abused. If they were, a full audit would ensue, and some sort of harsh penalty levied.

Bureaucrats would know they could lose their jobs or even go to jail if they invoked the DBR waiver inappropriately. And a separate group would spot-check DBR’s, so even if the official and his boss were taking bribes to issue DBRs, both would get caught.

But the net effect would be to do what Philip Howard wants: Give people in positions of responsibility a little discretion. Allow them to exercise a little common sense.

The good news is that, even without a law, progress is being made — as those who saw Al Gore smash an ashtray on David Letterman’s desk may have sensed. No longer, if you work for the government and need to buy a hammer (or an ashtray), must you put out a competitive bid. In Maine, OSHA has successfully redefined its mission from handing out citations, like a meter maid — the more citations, the better the job — to finding business-friendly ways to encourage safety. Now that program is being rolled out. And there are other examples.

You still need to get an appraisal if you want to borrow $5 million on the Sears Tower. But that too may one day change.

Cyber-copy this comment to enough people, and maybe it will. I’m sending a copy to my friend at the FDIC. (It’s the Office of the Comptroller of the Currency that requires my particular appraisal, I’m told, but I don’t have any friends there.) I’ll let you know what she says.


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