Tracking Down Killer Regulations

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The federal government lacks an independent office to provide retrospective analysis of regulations’ costs and benefits.

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Watching this week’s Republican presidential debate, it appears there’s a new way to describe regulation: murder.

Who knew regulation could be deadly? But today that’s exactly how Republicans describe it. Of course, they don’t claim regulation kills people, but they do claim it kills jobs, which is almost as bad. Rep. Michele Bachmann (R-Minn.) even thinks the U.S. Environmental Protection Agency (EPA) should be renamed the “Job-Killing Organization of America.”

Granted, Democrats have also been known to succumb to such mortal hyperbole. When industrial accidents happen, those on the left quickly blame governmental regulators for being asleep at the switch. And then there’s former Rep. Alan Grayson’s accusation during the health care reform debate in 2009 that Republicans want Americans to “die quickly” when they get sick.

If Republicans believe too much regulation kills jobs, Democrats believe too little regulation kills people.

But as with suspects in a real murder mystery, we shouldn’t disparage all regulations when there are only some individual culprits. Yes, some regulations can be unnecessarily burdensome. But most environmental, health, and safety rules have been in place for decades, long before our current economic woes. As much as the EPA makes for an easy target, it simply doesn’t explain the nation’s current unacceptably high unemployment rate.

By the same token, we can’t blame every industrial accident on a faulty regulatory system. What we really need is a better way to identify those regulations that are too costly as well as those that are too ineffectual. President Obama moved in the right direction in January when he called on federal agencies to develop plans for looking back at how well their regulations are working in practice. The plans agencies announced last month are a good start, but they fall far short of the systematic review needed to weed out the bad regulations and confirm the good ones.

Republicans and Democrats in Congress could make real progress by implementing structural reforms that would create a better system for identifying killer regulations. For example, when agencies develop major new regulations, they could be required at that time to announce detailed plans for how they will evaluate them once they are in place. High-cost regulations might even be required to sunset after a specified period unless evaluations come back positive.

Despite all the claims about how much killing regulations do, it’s surprising how poorly equipped the federal government is to do rigorous evaluation of regulations. The White House Office of Information and Regulatory Affairs reviews all significant regulations before they take effect, but no similar, central entity tests how well regulations work (or don’t work) after the fact. Now would be a good time for Congress to establish a dedicated Office of Regulatory Review charged with providing independent, retrospective analysis of regulations’ impacts.

If some regulations are truly killers, then Congress needs to create a regulatory CSI.

Cary Coglianese

Cary Coglianese is the Edward B. Shils Professor of Law, Professor of Political Science, and Director of the Penn Program on Regulation at the University of Pennsylvania Law School. He is the founder of and faculty advisor to RegBlog.

This essay first appeared on June 18, 2011 in Politico.