Over a decade has passed since the first federal legislation was enacted mandating that federal agencies use plain language in certain communications with the public. The Plain Writing Act of 2010 was a positive step forward, but a new — and better — law is on the horizon. The Clear and Concise Content Act of 2023 has been introduced in the Senate. This bipartisan bill has the potential to make greater strides toward plain writing in the federal government, achieving better transparency and accessibility for the public.

THE FIRST STEP: THE PLAIN WRITING ACT OF 2010

Readers may already be familiar with the Plain Writing Act of 2010, which President Barack Obama signed into law in October of that year. The Act requires federal agencies to use plain writing in “covered documents”: documents related to government services, benefits, requirements, or taxes.¹ It defines “plain writing” as “writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.”² Finally, it also requires that agencies annually report on their progress in using plain language.³

While the 2010 Act was celebrated as a victory for the plain-language movement,⁴ even its advocates acknowledged that it was “just the beginning.”⁵ Change within the federal government comes slowly, and plain writing is no exception. Indeed, a review of agency compliance about two years after the Act took effect showed that only about half the agencies had complied with the mandatory reporting requirement and that many were still releasing covered documents that committed the most common plain-language mistakes.⁶

Even in 2023 — 13 years after the 2010 Act became law — agencies are still struggling to use plain language. The most recent Plain Language Report Cards issued by the Center for Plain Language reflect a decrease in the agencies’ average writing grade: C, down from a B in the previous year.⁷ A quick review of agency websites shows that compliance with the reporting requirement remains lackluster.⁸ On the more positive side, though, many agencies have indeed improved — or are in the process of improving — their public communication in various ways.⁹

All of this reveals that there is still work left to be done. The 2010 Act, while a victory for the plain-language movement, has its shortcomings. Its scope is fairly limited in two ways: (1) it narrowly defines “covered documents” and (2) it applies only to documents created or substantially revised after the Act’s passage. Other shortcomings stem from a lack of oversight.¹⁰ While it requires agencies to issue annual reports, it does not require any particular content in those reports. Moreover, it directs agencies to simply post their reports on their websites; no one outside the agencies is required to review those reports. Instead, the Act puts the burden on the public to ensure compliance, envisioning a public that is aware of the Act’s existence, can recognize when a document fails to use plain writing, and will proactively inform the agency of that failure.

THE NEXT STEP: THE CLEAR AND CONCISE CONTENT ACT OF 2023

The Clear and Concise Content Act of 2023¹¹ would replace the 2010 Act, addressing its shortcomings and improving on it in numerous ways:

1. Broader Coverage. It broadens the type of writing that is required to be in plain language. It also requires all existing covered content — not just new or revised documents — to be in plain writing. This means that agencies must review all their content to see whether it is covered content that must be in plain writing.

2. More Inclusive. It defines “plain writing” to expressly include an audience who might be underserved or disadvantaged, such as those with disabilities or those who lack proficiency in English.

3. Compliance Metrics and Testing. It assigns the Director of the Office of Management and Budget the task of establishing metrics to determine the extent of an agency’s compliance with the requirement to use plain writing. It also requires agencies to routinely test their own covered content.

4. Better Oversight and Reporting. It provides additional levels of oversight: agencies must report to the Director, who then must report to Congress annually. In addition, agencies must address their plain-writing compliance metrics in the annual performance plans that 31 U.S.C. § 1115(b) requires.

5. Active Solicitation of Public Feedback. It requires agencies to reach out to the public and proactively solicit feedback, rather than putting the burden on the public to reach out to the agencies.

Here is a more comprehensive chart describing the differences between these laws.

REASON FOR OPTIMISM

This 2023 Act is substantially similar to one introduced in 2022,¹² which passed the Senate by unanimous consent in December 2022 but unfortunately didn’t make it through the House before the legislative session ended. Sen. Gary Peters, D-Mich., reintroduced the bill on March 8, 2023, with Sen. James Lankford, R-Okla., again cosponsoring. Just two weeks later, the Committee on Homeland Security and Governmental Affairs unanimously ordered that the bill be reported favorably.¹³ Given its bipartisan support and the success of the 2022 version in the Senate, good reason exists to be optimistic that this 2023 Act will become law. Of course, a call or email to your local senator and representative can only help.¹⁴ With the passage of the Clear and Concise Content Act of 2023, we can take another step toward broader use of plain writing in the federal government.