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Why the government can’t write in plain English

The ‘plain language’ movement wants to abolish bureaucratese. But what if regulations are obscure for a reason?

Globe Staff Photo Illustration

Over the past several days, Americans have been concluding a painful spring ritual, checking their math, signing their checks, and putting the finishing touches on their tax forms. Some of us will have spent weeks wincing at all the schedules and mysterious numbers, and doing our best to follow along as the instructions commanded us to “enter code type ‘7,’” “check box 32b,” and “see Form 6198,” like some kind of nightmarish choose-your-own-adventure.

Tax forms might be the most confusing documents some Americans have to face all year. But they’re bracingly simple compared to what lies behind them: the baroque federal regulations that describe how US tax code is supposed to work. Like so many of the innumerable “regs” enforced by our federal government — concerning everything from fuel efficiency standards to chicken farming to the number of hours an airline pilot is allowed to spend in the air — the IRS rules are a monument of bureaucratic language and jargon, virtually inaccessible to anyone without a law degree and vast stretches of time.

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When we hear about federal regulation these days, it’s typically in the context of a partisan debate over whether there is too much of it or not enough. But to the side of this age-old shouting match is a group of people who believe that the most important question regarding the American regulatory system is not about quantity, but quality.

For them, regulations are the real voice of government, the way it most directly affects the lives of Americans. And so it matters how clearly these rules are written, they argue: When the IRS, the EPA, the FDA, and the CDC speak in incomprehensible gobbledygook, it amounts to a genuine threat to democracy. If it’s impossible for voters to understand what the government expects of them, how can they make informed decisions, let alone make sure they’re doing what they’re supposed to do?

These haters of bureaucratic jargon march under the banner of the plain language movement, and since the 1970s, they have been working to convince the government to embrace the virtue of clarity.

“Regulations govern the lives of people, and they govern the way we conduct business,” said Joseph Kimble, a professor at the Thomas M. Cooley Law School and one of the founding directors of the Washington, D.C.-based nonprofit Center for Plain Language. “And it seems to me that . . . everybody that’s affected by regulations has a right to understand what they’re being told to do or not to do.”

Right now, by all accounts, plain language advocates are enjoying a happy moment: Their cause has been taken up enthusiastically by President Obama, who signed a law in October 2010 requiring federal agencies to use plain language in forms, letters, instructions, and other documents. More recently, the Obama administration issued an executive order saying regulations should be written in plain language, and a memo went out asking federal agencies to start appending a short summary to any “lengthy or complex” new rule. For the past two years, the Center for Plain Language has been giving out awards to the federal agencies that are doing the most to change their ways, with the IRS taking last year’s prize for “Best Revised Document” in the public sector category and the Department of Health and Human Services snagging “Best Website” in 2010.

But the plain language movement has a more ambitious vision for the future: Instead of federal agencies just explaining their regulations to the public in straightforward English, the movement’s supporters want them to actually write the regulations that way. In other words, government regulations themselves should be something average Americans can read without hiring a lawyer. And while the president’s executive order makes a gesture in that direction, advocates say it would need to be a law in order to actually happen.

Federal IRS tax forms at the JFK Federal Building in Boston.

John Tlumacki/Globe File

Federal IRS tax forms at the JFK Federal Building in Boston.

It sounds absolutely natural, that rules should be intelligible to the people who must follow them. But the lack of progress so far — earlier this month, an e-mail went out among the plain language faithful with a link to “the first plain language regulation that’s come out in years” — suggests that in tackling government regulations, their ideals are colliding with something deeper than just the lazy writing habits of bureaucrats. Sometimes, it turns out, language has a purpose besides communication. The complexity of federal rules may not be just a reflection of bad style, but a direct and possibly unavoidable result of how our government works.

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PLAIN LANGUAGE ENTHUSIASTS from around the world were gathered in Lisbon for the annual “Clarity” conference in the fall of 2010 when word came down that Obama had signed the Plain Writing Act into law. “There was a huge celebration,” said Miriam Vincent, a staff attorney in the Office of the Federal Register and a longtime member of a federal working group devoted to plain language. “It was a really big deal.”

The law — which covers any document containing information about federal benefits and services, or explaining how to comply with a rule — came as hard-won vindication to all those who had been trying to simplify government-speak since the 1970s, when Jimmy Carter signed an executive order declaring that any federal regulation had to be “written in plain English and understandable to those who must comply with it.” In the intervening years, the movement’s standing in Washington had ebbed and flowed. Ronald Reagan rescinded Carter’s executive order in 1983, and the Clinton administration brought it back to life in somewhat altered form in the late 1990s, with Al Gore grandly proclaiming clear writing from the government a “civil right.”

In an April 2011 memo to the heads of all the federal agencies, Cass Sunstein — the Harvard law professor whom Obama appointed to head his Office of Information and Regulatory Affairs — explained the administration’s expectations. He warned officials to avoid “jargon, redundancy, ambiguity, and obscurity,” and provided a link to more specific directives, such as “Don’t turn verbs into nouns,” “Avoid double negatives and exceptions to exceptions,” and “Have a topic sentence.”

There’s one thing the Plain Writing Act explicitly doesn’t do, however, and that’s apply the standards of plain language to the actual text of government regulations. And while the executive order Obama issued in January 2011 does apply to regulations, advocates say it doesn’t come with any enforcement mechanism, and they don’t expect it to have any more effect on Washington than similar calls made by Carter and Clinton in decades past. Instead, they want to see it passed as a law. Regulations were originally included in the Plain Writing Act, said Iowa representative Bruce Braley, who sponsored the bill, but it had to be toned down to win support in Congress. “I wanted it to go broader, but because of constraints in getting the bill passed, we felt it was important to start changing the culture in Washington on how agencies communicate in documents and forms and letters,” Braley said.

Joanne Locke, another one of the founders of the Center for Plain Language, and a former employee of the FDA, was more direct: “We tried to put regulations in, and frankly [Congress] just didn’t buy it.’’

There are reasons Congress balked. Annetta Cheek, chair of the Center for Plain Language and a 25-year veteran of the federal government, said there’s a perception in Washington that regulations are simply too complex and technical to be expressed in everyday language. When they saw that the original bill called for simplifying regulations, she said, “agency attorneys trooped up to the Hill and said, ‘We can’t do this, it’s too hard.’”

Why would it be harder to write a regulation in plain language than in complex jargon? In part, points out Braley, it’s because of the job a regulation needs to do: taking a law that Congress has passed and “dealing with the fine-tuning . . . putting into words how certain conduct is supposed to be governed.” That means a regulation carries a heavier burden than other writing that government agencies produce, like forms and letters. “The lawyers get their hands on them and want to make sure that they’re absolutely foolproof as far as going to court is concerned,” said Cheek.

The other objection plain language advocates hear is almost a cultural one: When written simply, regulations just don’t sound right.

“A lot of people think that if it’s clear and written in a straightforward way . . . people won’t think the government’s serious,” said Cheek.

Most plain language advocates chalk this attitude up to tradition and inertia. Bad habits are passed on from one generation to the next, and the sound of a bureaucratic “official” language simply gets locked into the culture.

“Sometimes the people who write the regulations speak regulation,” said Sunstein, who is perhaps best known outside of Washington for his book “Nudge,” on how to create policies that subtly shape behavior. Sunstein says asking agencies to append short summaries to complicated rules — thus forcing them to state the purpose of the rule briefly, right at the top — is a “quiet revolution.”

***

VETERANS OF THE plain language movement say the 2010 law has already made a big difference in terms of Washington’s willingness to take clear writing seriously. “Everybody’s starting to say, ‘We’ve really got to do this,’ and it’s actually starting to happen,” said Locke. “We have a long way to go, but it’s a beginning.”

But like other advocates, Locke wants the movement to push deeper. What ultimately drives them isn’t just style, but substantive transparency: Writing something plainly forces a person to be direct and unequivocal about what he or she is saying. And in the end, getting government officials to do that may prove the most formidable task of all.

It’s not that anyone in government believes that complexity and vagueness are virtues. But in a government as large and complex as ours — in which every regulation is the product of some tug-of-war within Congress, and even within the agency that issues it — an odd combination of vagueness and bureaucratic specificity might be the very thing that allows any law, and any regulation, to get passed.

“It’s a function of everybody’s fingers in the pie, or whatever the right metaphor is,” said Deborah Bosley, who teaches technical writing at the University of North Carolina Charlotte and sits on the board of the Center for Plain Language. “There are always add-ons and amendments and little caveats.”

Sometimes there’s a different problem at work. Miriam Vincent, the plain language advocate from the Office of the Federal Register, recalled situations in which she was trying to help an agency simplify a document, only to realize that the agency officials she was dealing with did not agree on what they were trying to say. In some cases, Vincent said, agencies are pressured into passing a regulation before they know exactly what they want the regulation to achieve, and so end up phrasing the text in a way that allows them to make the decision later.

“If they write it in a vague enough way,” Vincent said, “they can say it means whatever they want it to mean.”

The whole thing brings to mind a joke that the late comedian Mitch Hedberg once told about why pictures of Bigfoot all look like a blur: “I think Bigfoot is blurry,” he said. “That’s the problem. It’s not the photographer’s fault.”

Is it possible that forcing agencies and lawmakers to express themselves more clearly could really clarify what the government is doing — that sharpening the picture would actually make Bigfoot himself less blurry? That’s the hope. But while the notion that jargon and ambiguity serve as some kind of procedural lubricant may strike plain language advocates as repellent, perhaps it is the price of a system that relies on consensus to make things happen. Perhaps blurry regulations are just the only kind anyone can agree on.

Leon Neyfakh is the staff writer for Ideas. E-mail lneyfakh@globe.com.
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