I’m sure that readers of the Yale Journal of Regulation (and its blog) have by now realized that the Journal’s central subject is under sustained attack. Ben Carson, during last week’s debate among the GOP presidential contenders, had this to say about regulation:
And — and — you know, it goes back to the whole concept of regulations, which are in everything. The reason that I — I hate them so much is because every single regulation costs in terms of goods and services. That cost gets passed on to the people.
At a recent campaign stop, Marco Rubio promised that—well, let’s quote him directly: “As president, I will cripple the regulatory power of all federal agencies.” No surgical approach; no particularized assessment; just an across-the-board crippling. For his part, Donald Trump has vowed to eliminate the EPA if he wins the election, telling Fox News that EPA’s work “is a disgrace. Every week they come out with new regulations.”
It would seem that regulation is something of a dirty word among an important segment of the Republican base. This is not a new phenomenon, of course; opposition to regulation has been an important electioneering tactic since at least the 1970s. If today’s rants are different, it is because they are generalized and undifferentiated, targeting the entire project of regulation as if it lacked any plausible justification or possibility of success, and often ignoring the legislative origins of particular regulatory projects. To be sure, hyperbolic rants are standard campaign fare, and we won’t soon be accusing our made-for-TV candidates of drawing too-precise distinctions. But I’ve still been surprised by the breadth of the attack on regulation.
I, for one, bemoan this development as yet another impoverishment of our political discourse. Rhetoric aside, no serious political force in America today would argue that all regulation is illegitimate. Small- and big-government advocates will differ fiercely over the proper scope of regulation, but one would hope that both would agree that some regulation is necessary. (At last week’s debate, Jeb Bushmade a case for regulatory oversight of fantasy football, surely the next great locus of fiscal disaster.) And anything worth doing is worth doing well. It’s appropriate to debate the scope of regulatory intervention, and of course its democratic legitimacy, but it’s also appropriate and important to scrutinize regulatoryquality.
On that topic, fortunately, there is a new report that should help facilitate solid forward progress. The report—“Listening, Learning, Leading: A Framework for Regulatory Excellence”—comes to us from the Penn Program on Regulation (directed by Cary Coglianese), which has emerged as a leader in regulatory scholarship and analysis. A year ago, the Program launched its “Best-in-Class Regulatory Initiative,” and the Initiative’s final report is worth your time. The report takes the regulatory enterprise seriously, tackles its subject with care and scholarly rigor, and provides concrete measures that can aid both regulatory process and output. The report’s most critical contribution might be rendered by its mere existence, which challenges us to remember that regulation can be excellent, or it can suck. There is a world of difference between regulation carried out well and regulation carried out poorly.
Penn’s project calls to mind James Q. Wilson’s work a generation ago. A Harvard political scientist, Wilson understood well that government agencies vary in their performance just as surely as private firms. He set out to understand what made some government organizations effective, and others not. His work, perhaps best represented by his book Bureaucracy, delved into the nitty-gritty of government work and in so doing forced readers to reject easy caricatures of public servants and agencies. It also made clear that good bureaucratic governance is possible, and it set out to understand how it could be accomplished. That Wilson’s work is sometimes ignored or forgotten all these years later is perhaps inevitable, but his project should not be. Regulation most definitely need not be a dirty word.