Simultaneously Too Little and Too Much Regulation — a Suggested Fix from Former Virginia Governor, Now Senator Mark Warner
© 2010 Peter Free
16 December 2010
Screwing regulation up the federal way
One thing that caught my attention as both corporate and government attorney was the overwhelming amount of often dysfunctional regulation that Congress and the Executive agencies generate.
The oppressive regulatory net dysfunctionally constrains business and ordinary life at every turn. Without gaining anything that is functionally useful, even given the purported aims of the empowering legislation.
I make this criticism as someone who is simultaneously vehement that intelligent regulation is absolutely necessary in a complex and over-populated world.
However, having dabbled predominantly in antitrust, consumer protection, contracts, environment, health, pharmaceuticals, personnel, Social Security, and tobacco — my eyes were opened to the ludicrous levels, wordings, and misdirectedness of much of what the federal government does.
The extreme political right has not been wrong to distrust government in action, although it has been in error in thinking that it is government itself which is unnecessary.
The reality is that dysfunctional government, not government, is the problem.
State, county, and city-level governments are often adequately (or better) run. There is no reason that the federal government could not follow suit. Provided we citizens hold its feet to the fire.
At the federal level, particularly, the historical irony has been that:
(a) there are no regulations, or regulations are not enforced, in areas where they are needed,
(b) there are too many, too detailed, irrelevant, or counter-productive regulations, where they are not needed or where they are replicative.
Balance and common sense seems to escape Congress and the Executive. Which may explain why the “feds,” generally, are not held in high regard.
The above statement echoes Philip K. Howard’s long-held theme about the lack of common sense in government
He points to the rights-based national culture that fosters excessive regulation in his book, Life without Lawyers: Restoring Responsibility in America (W. W. Norton & Company, 2009).
He and I could not agree more about this topic.
Excessive regulation gets in the way of getting problems solved. And it prevents us from achieving human potential in a wide array of fields.
Finding one’s way to correcting the over-regulation mess is difficult. That’s where one of former Virginia governor, now Senator Mark R. Warner’s ideas is potentially useful.
Governor/Senator Mark Warner’s idea about restoring regulative balance
Senator Warner has a simple idea directed at fixing the imbalance between intelligent regulatory concision and over-the-top, verbose stupidity.
Excerpts from his recent opinion piece include:
As a former CEO, I think the best option is to adopt a regulatory "pay as you go" system. I am drafting legislation that would require federal agencies to identify and eliminate one existing regulation for each new regulation they want to add.
According to the U.S. Small Business Administration, the estimated annual cost of federal regulations in 2008 exceeded $1.75 trillion.
The Office of Management and Budget says that the federal government has issued more than 132,000 final rules since 1981, and over 1,200 of those rules have an estimated economic impact of greater than $100 million each.
Regulatory pay-go would discourage agencies from continually adding new rules because they would be required to eliminate one outdated or duplicative regulation of the same approximate economic impact for each new rule they want to enact.
This will not only provide balance but also will help simplify or eliminate outdated rules and procedures.
I know that any company that does not periodically review its operations or look for ways to improve its procedures will not survive very long.
© Mark R. Warner, To revive the economy, pull back the red tape, Washington Post (13 December 2010)
Senator Warner adds that Britain, which is already engaged in regulatory reform, has moved ahead of the United States in the World Bank’s rankings of business-friendly nations.
Simple action ideas are often effective
Complexity is often enemy of the action to be taken. Complex reform rules lead to do-nothing inertia. Complicated reform guidelines foster equally complex criticisms that tend to deflate enthusiasm for change.
Governor/Senator Warner’s idea is simple, actionable, and has the beauty of forcing change in the direction desired.
There is no a priori reason why his idea would not work, given the overkill of much of what is on the federal books.
Speaking as an attorney with considerable experience reviewing new laws and regulations in the light of old statutes and rules, I can irrefutably say that contradictions and unnecessary legal questions routinely abound.
These unnecessary conflicts and obfuscations occur because legislatures are too complacent, or too under-funded, to go back and toss out what is poorly worded, misdirected, or no longer completely applicable.
Less is more, in most subjects and under most suns
Effective regulatory “less-ness” comes from:
(a) grasping the subject completely
(b) limiting rules-output to directly match the core thrust of what we are trying to accomplish.
Most legal and regulatory excess comes from our inability to pay attention long and directly enough to be able to winnow what we are trying to do down to its basic and most effectual elements.
Thinking thoroughly and insightfully is hard work.
Congress and federal agencies, arguably, do it only in scattered fashion. Even when they do, the need to compromise leads them to (often deliberately) muddy the effect of what they are trying to do.
Tossing an old rule out, each time we are going to stick a new one in, would reduce the amount of the poorly thought-out overkill that our businesses and society have to cope with.