Should Voters Have More Say in the Regulatory Processes That Drastically Affect Their Lives?

In a recent op/ed at The Hill attacking the Regulatory Accountability Act and the Regulations from the Executive in Need of Scrutiny (REINS) Act, Michael Lipsky, Distinguished Senior Fellow at Demos, begins by praising a grandiose body of indisputably great regulations:

Child labor laws, building codes, antitrust laws, many public health measures, workplace safety and wage laws, labor rights, environmental and consumer protections, food and drug safety, and many others are properly understood as public actions that limit business behavior in order to strike a fairer balance between the needs of business and the needs of people and the environment.

Lipsky's dream of unhindered techno-bureaucracy is actually a nightmare, and we are living it right now. The divorce of responsibility for regulations and rules from the true source of their authority has resulted in a regulatory regime with little to no accountability to the parties most affected by regulatory tinkering. Agency officials, as executive appointees, are insulated from political liability to voters, while remaining heavily exposed to powerful interest groups and lobbyists. REINS would hold Congress politically accountable for the authority they delegate to executive agencies through legislation. They do not, as Lipsky would have you wetting your pants over, make it "virtually impossible to enact meaningful safeguards in the future."

If Lipsky believes that "voters would punish conservatives if they tried to repeal the Clean Air Act or food and drug protection legislation, or abolish the Environmental Protection
 Agency or the Occupational Safety and Health Agency," it's odd that he'd oppose REINS. According to James Gattuso at The Hertiage Foundation, the bill would allow voters exponentially more punishment power:

Since Members of Congress must regularly face the voters, they have a different perspective than appointed regulators. Therefore, some rules will be turned back as unacceptable. But that is not a flaw in the process; it is an important feature. Simply put, no rule should be adopted if the American people, as represented by Congress, do not agree that it is appropriate.

And it's important to remember, as The Volokh Conspiracy's Jonathan Adler notes in a paper for Cato on the REINS Act, that regulatory agencies' power is ultimately a function of Congress:

Federal regulatory agencies have no inherent powers. Article I, Section 1 of the Constitution vests all legislative power in the Congress. Federal agencies only have the power to adopt rules governing private conduct if such power has been delegated to them through a valid statutory enactment.

Lipsky also claims as "fact" that "financial deregulation was a major factor in the worldwide economic collapse." Reason Foundation's Anthony Randazzo says the idea that financial deregulation caused the economic crisis is a myth:

Given all the talk of deregulation, you would expect to find dozens of deregulating laws put in place over the past few years. Surprisingly, there have only been three major deregulatory actions in the past 30 years. Ultimately, the data points to bad regulation as complicit in the creation of the financial crisis, not deregulation.

There is zero acknowledgement in Lipsky's piece of evidence that contradicts the fundamentalism of his thinking, which is perfectly embodied in the claim that regulations "are properly understood as public actions" etc. etc. What if understanding isn't the issue? What if there's room for disagreement on the need for regulations? These aren't questions Lipsky considers. He also conveniently neglects citing his sources, including a poll of small business owners "that indicates that low demand, not the threat of regulation, has been the source of entrepreneurs’ reluctance to invest." Without knowing the specific poll he references, I would note, as a counterargument, a Gallup poll in which regulations were indeed the number one concern for most small business owners.

The idea that anyone who disagrees with the unintended consequences of child labor laws, oppressive building codes, counterproductive antitrust laws, overbearing regulations in the name of public health, workplace regulationsminimum wage laws, and labor rights that infringe upon the right to labor, the EPA, protecting consumers from things they want, the killer FDA, and many other regulations, simply does not "properly understand" Federal regulations, is rather absurd. 

Reason's archives on regulation here.

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  • ||

    Nice looking horse.

    Morgan, I think.

  • o3||

    "Lipsky's dream of unhindered techno-bureaucracy is actually a nightmare, and we are living it right now."
    _

    considering the AIG & CUNA suits vs JP morgan & BoA for malfeasence & misrepresentation, we are actually living the consequences of UNregulated, "free" market, self-policing.

  • cynical||

    You realize it's not like they could sue Congress for shitty regs, right?

  • o3||

    no federal reg or agency mandated malfeasence or misrepresentation victimizing shareholders, investors, insurers, & rating agencies.

  • cynical||

    malinvestment, on the other hand, was strongly encouraged.

  • ||

    these 'regulations' are laws by another name.They are called such to get around the fact that only congress can write a law.But call them'regulations' and very department of the government can meddle in peoples lives with the force of law.

  • Technocrat||

    Of course not. This is a republic, not a democracy. Like the PRC, or any nation without a monarch.

  • ||

    One of SCOTUS historic betrayals was when it allowed the executive to legislate by refusing to strike agency regulations as violations of separation of powers.

  • Tony||

    Much better to leave regulations to private business management. They know what's best for the environment and human safety, because what's profitable always aligns with those concerns.

  • ||

    Given the choice between you and Bernie Madoff as a regulator, I'd choose Bernie.

  • Brendan Perez||

    Nah. How about we leave regulations to CONGRESS and mandate that only Congress implement regulations?

    Congress currently implements statutes (US Code) and delegates substantial amount of authority to agencies and cabinet departments who implement their own broader regulations that carry the force of law (Code of Federal Regulations ie., CFR).

    This is a problem when unelected officials substantially stretch the regulation beyond what Congress intended and/or beyond a reasonable understanding of the power of the original statute.

    When cabinet officials and agency heads can effectively implement law without a vote by our representatives, this is a problem.

    Yes, departments are required to publish their proposed regulations in the Federal Register, there is no vote required. They simple open a comment period, take comments, and implement (or withdraw) the regulation they feel necessary.

  • Tony||

    Because the entire purpose behind laws like REINS is to make regulating virtually impossible. If career technocrats are corrupted by business interests, that tends to result from corruption at the top. All of the awful shit that happened under Bush wasn't necessarily the result of deregulation (though a lot of it was), but of a Republican ethos that installed business-friendly people as regulators, and such. There's nothing wrong with a technocracy in principle. 535 elected legislators can't physically do all of the work of managing a country. Most of the regulations mentioned here are noncontroversial except among people who are philosophically opposed to most government intervention of any kind. Those people need to grow up.

  • Brendan||

    Congress can regulate all they want. Executive Branch officials should not be.

    If Congress doesn't have enough time on their hands, perhaps they should check their priorities.

  • mad libertarian guy||

    You keep using the word "deregulation" like you have any idea what it means.

  • ||

    No, much better to leave regulations to government. They know what's best for the environment and human safety, because what's politically profitable always aligns with those concerns. Thank Jeebus we have the government watching over us or environmental and financial disasters would occur. As we all know from hundreds of years of government regulation, these things do not occur when the government is regulating them.

    In other news, any action or thing that might be used to harm someone is now banned by the government. The possibility that businesses anything might harm someone is not acceptable and freedom must be sacrificed in order to ensure safety.

  • Tony||

    If a majority of the country decided that we didn't need child labor or workplace safety rules, you'd be a champion of democratic governance.

    But they never will so you're forced to hate democracy and pine for an undemocratic enactment of your silly little dogma.

  • ||

    If a majority of the country decided that we didn't need child labor or workplace safety rules, you'd be a champion of democratic governance.

    No I would not, you disingenuous moron.

    But they never will so you're forced to hate democracy and pine for an undemocratic enactment of your silly little dogma.

    Good job responding to anything I said, dumbass.

    Oh and I know you just love getting reamed by the conservative majority. Your freedoms are just dogma, right?

  • Tony||

    If there is no democracy, there is no freedom. Anyone can come along and invent a holy book of rights and fill it with whatever he wants.

  • ||

    Democracy is simply mandate by the majority. From the perspective of freedom, this is no different from any other tyranny. The benefit of the majority is not freedom just like the benefit of the tyrant is not freedom.

    We can eliminate this tyranny by going past democracy into self-ocracy. Instead of one person or a group ruling over everyone else, we need to have no one rule over another. That in itself is freedom. If you had half a brain you would realize that there is no "holy book" to be written. Freedom is simply having no one's will overpowering your own. Freedom can't be created by democracy because democracy is merely a step in the evolution of political power towards freedom. We started with one ruler, we now have many, we will eventually have none.

  • ||

    If there is no democracy, there is no freedom.

    That is not true and nor is it the purpose of democracy.

    The purpose of democracy is to allow for the peaceful transfer of power.

    This is desirable by anyone...including libertarians, but do not fool yourself; a mechanism for the peaceful transfer of power by no means grantees freedom....and in no way does a lack of such a mechanism prohibit freedom...though in real terms any freedom without it would unlikely to last longer then the life of a liberal king/dictator.

  • cynical||

    I think the gist of the article was that it was better to leave rulemaking to the legislature, as A) they are the ones actually granted that power by the Constitution, and B) while both Congressmen and regulators are susceptible to corruption, Congressmen are at least nominally directly accountable to the people.

    If you can't be bothered to read the article, maybe you should at least read the headline.

  • Tony||

    These laws are vehicles for killing regulations. You should read the linked article.

  • cynical||

    I did. It didn't say anything to defend against the counter-argument that regulation is just another word for "law" and should be directly subject to the democratic legislative process. It did feature a lot of content-free apologia for technocracy.

  • Brendan||

    Take that up with your Congressman. They are supposed to be the ones regulating. If they fail to do that in the absence of the executive branch regulating, it shows that they're trying to dodge accountability.

  • Spartacus||

    Article I, Section 1 of the Constitution vests all legislative power in the Congress. Federal agencies only have the power to adopt rules governing private conduct if such power has been delegated to them through a valid statutory enactment.

    Problem is, the Constitution does not allow Congress to delegate its legislative authority. "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
    You have to be a supreme court judge to not understand it.

  • Brendan||

    Nah. How about we leave regulations to CONGRESS and mandate that only Congress implement regulations?

    Congress currently implements statutes (US Code) and delegates substantial amount of authority to agencies and cabinet departments who implement their own broader regulations that carry the force of law (Code of Federal Regulations ie., CFR).

    This is a problem when unelected officials substantially stretch the regulation beyond what Congress intended and/or beyond a reasonable understanding of the power of the original statute.

    When cabinet officials and agency heads can effectively implement law without a vote by our representatives, this is a problem.

    Yes, departments are required to publish their proposed regulations in the Federal Register, there is no vote required. They simple open a comment period, take comments, and implement (or withdraw) the regulation they feel necessary.

  • Brendan||

    Sorry. The page errored out when posting. Hopefully this is the only double post.

  • Alan Vanneman||

    "Nightmare," huh? Gee, I'm pretty happy. I guess Seth won't be until he has six-year-old kids cleaning his chimney.*

    *A gross exaggeration, I confess. Sorry!

  • ||

    Wow, and I thought libertarians were supposed to be selfish. Apparently Alan Vanneman (The Every Man) is doing happy, thus everyone is happy and there is no problem.

  • ||

    Interesting, isn't it, how effortlessly the apologists for the Total State shift from

    "You shouldn't complain about any laws passed by elected representatives because, you know, majority, democracy, etc."

    to

    "Prohibiting unelected bureaucrats from enacting laws free from the accountability of democracy is horrible, because, you know, Top. Men."

  • cynical||

    You could say the same about conservatives and libertarians that shift from "tyranny of the majority" and "republic, not a democracy" to "we need democracy!"

    Not that the libertarians don't have a point, they just tend to express it badly so that it sounds inconsistent.

  • Coeus||

    They do it because they know that the first claim is dishonest. Just like FICA isn't a tax until the argument suits them to declare it one. Ditto with the penalty on the individual mandate.

  • ||

    "You shouldn't complain about any laws passed by elected representatives because, you know, majority, democracy, etc."

    to

    "Prohibiting unelected bureaucrats from enacting laws free from the accountability of democracy is horrible, because, you know, Top. Men."

    I am having a hard time figuring out which is worse.

    I mean if it is democracy is it not your duty to complain about laws passed by democratically elected officials?

    I guess it must be the later as it has two strikes.

    It makes the claim that you should not complain about laws in a democracy and you should not complain about laws created by unelected bureaucrats.

    But the worst of them all is Tony's take on it:

    "You should not complain about laws in a democracy created by unelected bureaucrats because in a democracy the majority rules."

    The complexity of Tony's stupidity is almost genius. It is like reading Lem's cyberiad but with the author being serious.

  • Warren B. Mark||

    Obviously not.

    What would be the point of lording over the childlike masses on non-rich, non-connected little people if we let them have a say in the regulatory process?

    One can hardly swing a Gulfstream 550 without hitting some nouveau riche upstart sub-billionaire ranting about the constitution or individualism or some such inanity. They're unwashed, you know.

    It's a sign of the times...no more respect for aristocratic, patronizing figures of the establishment.

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