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.