Over-Ruled: Part I


“As the body of rules grows, the legal landscape becomes more thickly populated and harder to traverse. Concealed declivities, sudden detours, arterial congestions, unexpected cul-de-sacs, puzzling signs, and jarring encounters abound.”—Peter H. Schuck

Schuck’s  Why Government Fails So Often: And How It Can Do Better first appeared in 2014, so it was not the inspiration for Paul LePage’s 2010 hope to make it a rule for the legislature to deduct two old laws or rules for every new one it adds. Our left-lurching friends will see the  governor’s ambition as further evidence of the unquenchable malice of the Blaine House Beast. The mean bully hates government. They have long since categorized and characterized our governor to their satisfaction, but they can’t dismiss Schuck with the same ready glibness. He’s a Yale professor who has served in the Department of Health, Education, and Welfare in Democratic administrations. More, I came across his book from reading the liberal Brookings Institution “Fix Government” bulletins. The Brookings boys and girls, and many other liberal mandarins, esteem him highly.

Philip K. Howard, a sometime advisor to Al Gore, is another liberal who has written on suffocating effects of the  surfeit of laws rules, and judicial  entanglements government has inflicted on society. The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom and  Life Without Lawyers: Restoring Responsibility in America. Readers interested in his analysis can find plenty on his website [www.commongood.org].

Schuck and Howard stand out among a growing minority of moderately liberal intellectuals who  are very much pro-government. They find its performance poor and getting worse and hope to improve it by proposing reforms.. It would not be inappropriate to characterize Governor LePage as pro-government in the same sense, with the proviso that his higher priority is to improve, or widen, liberty.

The Other Path, by Hernando de Soto gives an idea of how bad over-rulings can become. The thesis of this book, and all his work, is that the ever-growing over-regulation, dating back to the 19th century Mercantilism Era has driven an ever-larger part of the Peruvian, and other South American, economy underground. In 1983 a team from his research institute “simulated” a small garment factory. It complied with all the regulations required by law, rented space in an established factory and  installed all the necessary machinery. Four university students undertook all the necessary administrative procedures under the guidance of an experienced lawyer.

The simulation complied with 60% of the bureaucratic procedure common to all industrial enterprises and 90% of those required of non-incorporated individuals.  The students handled all the usual red tape without using  professional go-betweens, paid bribes only when it was the only way to continue the experiment.

As it happened they were asked for bribes in order to speed up procedures on ten occasions but managed to get away with paying only two. The student researchers went from office to office, took notes, timed the procedures, collected a multitude of documents.  It took 289 days to complete the 11 procedures required to establish a small industrial enterprise.

A different experiment determined that a group of humble families would spend six years, 11 months acquiring land for settlement from the government. Yet another demonstrated that it would take 43 days to get legal permits to open a small store from 3 different governmental departments. I recently read a column asserting that a merchant can obtain a Hong Kong Business License in a few hours by filling out a single form.

It’s seems unlikely that Maine will ever trim its bureaucratic burdens down to a Hong Kong level, but will any part of the United States ever achieve a Peruvian level of obstruction? Take the trouble to read Schuck and Howard and you will have to ask what’s going to prevent it.  The story they tell is of a bureaucratic/political/judicial culture set on an automatic course .

Maine does not provide a lot of hope. The beginnings of the LePage administration brought about some regulatory trimming, but left the pessimists with plenty of fodder to nourish their gloomy dispositions. The governor was critical of its limited scope. The GOP legislative leadership was pleased with the non-partisan unity behind reform  in the relevant committee. Maine’s moderatestream media were content with the regulatory trimming and disdainful toward the governor’s “ideologically” motivated criticisms.

If the moderates had paid closer attention, they might have been less content with the Democrats support for limited reforms and more curious about why they had never thought to carry out those reforms themselves when they held the power. As it turns out the mainstream media’s interest in regulatory limits has exhausted itself. The process of regulatory expansion has begun to resume its course despite the governor’s efforts.

This month the Legislature’s Transportation Committee rejected LD 185 by a one-vote margin. It may yet pass the Senate. The bill,  sponsored by Sen. Roger Katz, R-Augusta, would restrict cellphone use by drivers operating a motor vehicle to hands-free devices. The idea is to improve on the state’s 2009 law restricting distracted-driving law and one in 2011 that banned  texting.

Steve Mistler writes: “the majority of lawmakers worried that the bill would do little to solve the problem, while giving police too much authority to pull over and penalize drivers who were talking on their phones, but not operating their vehicle erratically.”  I’ll bet they’re worried. I’m not accusing Senator Katz or any other individual, but if I had to guess the number of legislators who have NOT driven while distracted since 2009 I would guess none.

There’s no conclusive statistical proof one way or another but I have a good deal of  empirical evidence. For example, not long ago I was a passenger in an auto hurtling along a road through dark woods with suicidal deer lurking behind every other tree (in my imagination if not in reality). The auto was piloted by a former legislator engaged  in prolonged political palaver. When he finally finished up, I learned that his interlocutor was a state representative driving along equally distracted. This is not an isolated example. In fact, I have never taken a trip with a politician who was not distracted by cellphone use at some point.

Does all this tell us something about the inexorable growth of laws,  regulations, and rules?


Please enter your comment!
Please enter your name here