Red Tape: Its Origins, Uses, and Abuses

by Herbert Kaufman, Philip K. Howard (Foreword by)

Overview

Death, taxes, and red tape. The inevitable trio no one can escape. That wry sense of reality colors Herbert Kaufman's classic study of red tape, the bureaucratic phenomenon that all of us have encountered in some form—from the confounding tax form filled out annually to the maddeningly time-consuming wait at the driver's license bureau.

The complaints about red tape, Kaufman concedes, are legion. It's messy, it takes too long, it lacks local knowledge, it is out of date, it makes insane demands, it increases costs, it slows progress. It is, in short, a burden and many times there is no measurable positive outcome.

Kaufman takes us on an unblinking tour of the dismal landscape of red tape. But he also shows us another side of red tape, one we often forget. Red tape is how government protects us from tainted food, shoddy products, and unfair labor practices. It guarantees a social safety net for the elderly, the disabled, children, veterans, and victims of natural disasters. One person's red tape is another person's protection.

This reissue is a Brookings Classic, a series of republished books for readers to revisit or discover, notable works by the Brookings Institution Press.

Product Details

ISBN-13:	9780815726616
Publisher:	Rowman & Littlefield Publishers, Inc.
Publication date:	06/08/2015
Series:	A Brookings Classic
Sold by:	Barnes & Noble
Format:	eBook
Pages:	100
File size:	754 KB

Read an Excerpt

Red Tape

Its Origins, Uses, and Abuses

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By Herbert Kaufman

Brookings Institution Press

Copyright © 2015 The Brookings Institution
All rights reserved.
ISBN: 978-0-8157-2661-6

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CHAPTER 1

OBJECT OF LOATHING

Once in a long while, a voice is raised in defense of red tape. Or at least in explanation of it. These voices are almost never heard. They are drowned in an unceasing chorus of denunciation. Everybody seems to hate red tape.

I say "seems to" because the apparent unanimity conceals significant differences. One person's "red tape" may be another's treasured safeguard. The term is applied to a bewildering variety of organizational practices and features.

Still, a common set of complaints is embedded in most definitions even though the complaints refer to different specific irritants. When people rail against red tape, they mean that they are subjected to too many constraints, that many of the constraints seem pointless, and that agencies seem to take forever to act. That is, we detest our respective forms of red tape, but for the same reasons.

TOO MANY CONSTRAINTS

We all hate to be told we have to do something or may not do something. Even if we actually enjoy the compulsory tasks and dislike the forbidden ones, the command rankles. The element of compulsion itself is distasteful. And it is much worse if we are forced to do what we don't want to do, and are prohibited from doing what we strongly want to do.

Today, you can hardly turn around without bumping into some federal restraint or requirement. It wasn't always so; there was a time you could embark on almost any venture without encountering a single federal constraint. Now, however, if you should take it into your head, say, to manufacture and market a new product, you would probably run into statutes and administrative regulations on labor relations, occupational safety, product safety, and air purity. Your advertising would probably fall within the jurisdiction of the Federal Trade Commission. The Department of Justice would be interested in your relations with your competitors. Should you want to raise capital by the sale of stock or bonds, you would fall under the Securities and Exchange Commission. You would need export licenses from the Department of Commerce to sell your product in some areas of the world. Federal prohibitions against race, age, and sex discrimination in hiring and promotion would apply to you. If you were to extend credit to your customers, you might fall under truth-in-lending laws. You would have to file sundry reports for tax, social security, pension, and census purposes. In some fields—communication, transportation, energy, insurance, and banking, for instance—restrictions and oversight are especially stringent. But firms of all kinds, large and small, are subject to diverse federal requirements. You can't just start and run a business without reference to federal specifications and officials.

Business is not the only activity affected this way. Labor unions, foundations, political parties, universities, lobbyists, and even farmers are similarly constrained. Every recipient of government subsidies, loans, and other forms of public assistance finds these benefits come with conditions and obligations that have to be satisfied. The government's reach is very long.

The sheer mass of binding official promulgations and interventions in the marketplace begins to be oppressive. The number seems to increase steadily. The media revel in embarrassing exposés. Although it is possible that this impression is engendered partly by the irritations of corresponding actions by state and local governments and the private sector of society, which are no less prolific, the federal government, being the largest and most visible institution, attracts a disproportionate share of the venom. Many people seem to feel it is closing in on them from all sides, and it is to this sensation that they react when they excoriate red tape.

They are dismayed also because the torrent of requirements descending on them is too overwhelming for them to comply with. Conscientious, upright citizens are often distressed when they find themselves in violation of government directives, yet they simply cannot keep up with the flood. Said one desperate victim, "We have reached the saturation level, and each new law and each new agency at every level of government ... is forcing decent citizens into involuntary noncompliance with the law. Now, this is tragic when upstanding honest citizens just can't comply with the laws."

It is certainly undeniable that the output of the federal government is prodigious. Congress alone produces over a thousand printed pages of public laws in an average session. Federal courts routinely publish thousands of pages of decisions and opinions every year. The regulations of federal administrative agencies, including both draft and final forms, total more than 50,000 printed pages annually. One especially prolific agency was said to have issued enough documents to make a stack seventeen feet high. Of course, there is substantial redundancy in this outpouring. Moreover, only a small percentage of it is likely to affect any given individual or organization. Still, it is easy to understand why red tape has become a matter for concern. The stream appears to be at flood stage and relentlessly rising.

Another indicator of its ostensible menace is the volume of material the federal government requires people to submit to it: the total number of submissions has been put at more than 2 billion a year, or nearly ten for each man, woman, and child in the country. Over 70 percent of these, it is true, are connected with taxes, chiefly for internal revenue and social security, but this means the impact is extremely broad. Moreover, the remaining 600 million are highly diversified; indeed, the number of different forms authorized for distribution to the public by federal agencies exceeds five thousand.

Many people are hard hit by these requirements. A "Mom and Pop" store with a gross annual income of less than $30,000 had to file tax forms fifty-two times a year. A firm with fewer than fifty employees had to prepare seventy-five or eighty submissions a year for various agencies. A small securities broker-dealer sent thirty-eight submissions to seven different agencies in one year. A plant employing seventy-five people had two of them working half time solely to draw up compulsory plans and reports; a company with a hundred employees made seventy filings or payments each year to the Internal Revenue Service alone; a small radio station assigned two employees full time for four months to supply all the information specified by the Federal Communications Commission for license renewal, and another reported that its application for renewal weighed forty-five pounds. The chairman of the board of a large pharmaceutical firm claimed that his company prepared 27,000 government forms or reports a year at a cost of $5 million. ("We spend," he added, "more man-hours filling out government forms or reports than we do on research for cancer and heart disease combined.") Even personal income tax forms, despite great progress in simplifying them, are now complicated enough to require a good deal of effort by most taxpayers and to have fostered numerous commercial services that help them with the tasks of computation and filing.

Nobody escapes. Each of us has his or her own complaint. Each hears similar complaints from others. Each realizes that his or her discontent, though it represents only an infinitesimal segment of the broad band of government activities, is part of a pattern too vast for one person to perceive. No wonder everybody begins to feel suffocated by red tape. The sheer magnitude of the government's demands and constraints, no matter how reasonable each of them is individually, guarantees this reaction.

"POINTLESS" CONSTRAINTS

From the point of view of the individual citizen, however, they are not all reasonable. Some of them make no sense to the people who must comply with them. If people find self-evidently justified requirements intolerable when they become too numerous, imagine how they feel about requirements that seem pointless. It would not take many of these to discredit the whole body of government constraints.

Of course, what is pointless to one person may seem essential to another. Values and perspectives vary. Also, the reasons for any given program or policy may be persuasive, though not obvious; inadequate explanation may account for its ostensible pointlessness, or perhaps some critics fail to evaluate it carefully. Pointlessness is relative.

But it is people's perceptions of government constraints, not objective measures of reasonableness, that lead them to attack some constraints as red tape. With torrents of new promulgations pouring from government organs, if even a small proportion strike some people as senseless, the absolute number of the disaffected must be large. From all indications, that is exactly what happens.

"Irrelevant" Requirements

For example, many complaints about red tape come from critics who believe that they have been compelled to obey commands that should not apply to them and probably were never meant to. Thus the legislative counsel of the National Society of Public Accountants, testifying about some reports collected from businessmen by the Census Bureau, told a Senate subcommittee:

The detailed complexity of some of the census economic forms has questionable value. ... The compilation of a great mass of statistics has little value to the persons whom it was apparently meant to benefit. ...

Information, I must add, that in large part was supplied by the people who basically do not need it. In my own practice—and in this I am experienced—I know of no business that uses any of the census statistics in any way, even though they must supply this information.

Similarly, a small retailer stormed:

I have here a 32-page booklet, published by the Department of Labor, explaining what we must do to comply with the recent Occupational Safety and Health Act. It also contains copies of three new records we employers must maintain and then keep on hand for two years. I must sit down with these materials and figure out what I have to do to comply with this law, and then see to it that the requirements are carried out. Yet retailing isn't even a target industry of OSHA.

To which a small New Hampshire manufacturer added:

OSHA was written for companies like Ford Motors which actually owns a huge hospital in Dearborn. The act was not written for my little company with a medicine cabinet containing a bottle of Mercurochrome and a bottle of aspirin.

Testimony of this kind from a number of witnesses persuaded the Senate Select Committee on Small Business that the Federal bureaucracy, the governmental units most removed from the people, fails to understand the circumstances or the need of the private citizens or the small business. ... Bureaucrats, accustomed to dealing with situations of massive scale, find it virtually impossible to comprehend the stress their demands ... place on the small firm.

The problem of irrelevant requirements was said to be so pervasive as to arouse suspicions of a conspiracy:

Some small businessmen who make little or no use of officially compiled information, themselves, suspect that there exists an unholy alliance between Government and big business in these matters and that the information supplied by them to the Government is often used by market researchers, location specialists, and sales analysts of the large companies to the detriment of small business.

But it is not only small businessmen who object. The representative of the pharmaceutical manufacturer mentioned earlier observed,

Our application to the FDA for a drug for treatment of arthritis consisted of 120,000 pages. ... About 25 percent of these pages—or 30,000 of them—contained information that was important to the evaluation of the drug by FDA. The other 90,000 pages contained incredibly detailed records.

Officials themselves concede the prevalence of wide disparities in viewpoint between themselves and the public. A group of high-level Washington administrators ("admirals and generals of the bureaucracy," they were called by a commentator) were brought to New York City to learn at first hand something about the life of the poor. Many of them were astonished. "Here we are in Washington passing on licenses for Con Ed," one of them said, "and we never think about how people like this are on the other end of the line." "We are too insulated in Washington," another remarked. "We don't realize what's going on out there in the country."

"Out there in the country," countless Americans agree with them and disparage as useless and irrelevant many of the things the federal government requires and forbids.

Duplicative and Contradictory Requirements

Even when they acknowledge the usefulness and relevance of specific requirements and prohibitions, people are incensed at having to do the same thing many times for different agencies when it appears to them that once would be enough if the government were more efficient. Witnesses testifying at congressional hearings complained of this again and again. One observed,

In the requirement of the reporting and process of compliance with the Equal Employment Opportunity requirements under the law ... it seems to us that if we work for five or six agencies of the Government we should only have to ... indicate that we are in compliance with the law one time. But by reason of the fact that the bureaucrats ... in each agency want exactly the same thing, instead of filing once ... we have to file as many different sets of these as we work for different agencies.

Another explained,

We are not unreasonable people in business. We realize that you have to have a record and you have to measure accomplishments and all of these things, but we do not believe that it takes the same record 10 different times to produce the results that are actually required by law.

The congressional committee joined in wondering "why he must report similar information to several Federal agencies, and identical information to a federal and to a state agency," and concluded:

The form-maker, sitting in Washington surrounded by hundreds of other bureaucrats, does not comprehend the urgency of this man's point of view, the man is only being asked to spend a few hours filling out a form. What the bureaucrat fails to understand is that the few hours his agency requires multiplied by the requests of several other Federal agencies places an enormous strain on the resources of the small enterprise.

Executing the same forms over and over is not only boring and, to the people who must complete them, a foolish result of poor management; it adds to expenses. Nobody knows exactly how general such duplication is, but the scale of government operations is so large that it apparently occurs frequently and casts a shadow on the need for most of the things the government does or demands.

Still more irritating from the point of view of the conscientiously law-abiding person, in government as well as in private life, are government requirements drawn in such a way that to obey one seems to lead to violations of the other. I say "seems to" advisedly. The apparent inconsistencies are often ambiguities rather than contradictions. But even ambiguities impose dilemmas and burdens on those who strive to comply; each individual must resolve for himself or herself uncertainties created by poor draftsmanship, inadvertent contradictions, or deliberate avoidance of hard choices on the part of officials, and the most painstaking attempt to obey all provisions of all applicable sets of requirements meticulously may eventually be judged to have violated one or another.

For example, legislation protecting the right to privacy may conflict with the spirit, if not the letter, of the Freedom of Information Act. To take another case, one strategy for reducing racial discrimination is to prohibit inquiries about race on application forms of all kinds in both the private sector and in government, but another strategy is to require records on the treatment of minority applicants so that patterns of prejudice may be exposed and reversed; people can get caught between the two. A third illustration is the uncertain line between the expectation that career public servants will carry out the edicts of their political superiors without regard to their own predilections and the principle that duty requires them to disobey improper orders. These conflicting guidelines shift the difficulties of reconciliation from the promulgators of official policy to the individual private citizen or public employee without much guidance and with the possibility of punishment no matter what course is chosen.

(Continues...)

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Excerpted from Red Tape by Herbert Kaufman. Copyright © 2015 The Brookings Institution. Excerpted by permission of Brookings Institution Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

Contents

Foreword Philip K. Howard, vii,
Exordium, xv,
ONE Object of Loathing, 1,
TWO Of Our Own Making, 25,
THREE Rewinding the Spools, 49,
Notes, 85,
Index, 101,