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Any new or existing enterprise can be strangled with ease when regulatory coercion is brought to bear. Whole industries can be strangled. And the strangulation of freedoms is not limited to business concerns. Individuals are impacted as well by the loss of employment choices and opportunities, choices in the marketplace, and even more basic freedoms such as speech and assembly. In an excellent paper, “The Rule of Law in the Regulatory State“, John Cochrane of The University of Chicago highlights the negative consequences of growth in the scope and complexity of regulation. It looks like a working paper with a few items in need of editorial attention. Nevertheless, it contains several interesting ideas, some noteworthy examples of regulatory overreach, and useful dimensions along which to think about regulatory power and its application.

Cochrane’s first two paragraphs give an overview of the pernicious social effects of regulation gone wild, yet they only scratch the surface:

The United States’ regulatory bureaucracy has vast power. Regulators can ruin your life, and your business, very quickly, and you have very little recourse. That this power is damaging the economy is a commonplace complaint. Less recognized, but perhaps even more important, the burgeoning regulatory state poses a new threat to our political freedom.

What banker dares to speak out against the Fed, or trader against the SEC? What hospital or health insurer dares to speak out against HHS or Obamacare? What business needing environmental approval for a project dares to speak out against the EPA? What drug company dares to challenge the FDA? Our problems are not just national. What real estate developer needing zoning approval dares to speak out against the local zoning board?

The centerpiece of Cochrane’s paper is his elaboration on a list of bullet points, or dimensions for assessing a regulatory process. The list is given below in italics (without quote marks), and each bullet is followed by my own brief clarification:

  • Rule vs. Discretion? – Rules are better. How much latitude shall a regulator have?
  • Simple/precise or vague/complex? – Simple is better. Vague/complex ≈ discretion.
  • Knowable rules vs. ex-post prosecutions? – Surprise! You’re busted. Vague ≈ unknowable. 
  • Permission or rule book? – Don’t make me ask. Review my plans non-arbitrarily. 
  • Plain text or fixers? – Must I hire a specialist with agency connections?
  • Enforced commonly or arbitrarily? – Objective vs. motivated enforcement.
  • Right to discovery and challenge decisions. – Transparency of evidence & standards.
  • Right to appeal. – to courts, not the agency.
  • Insulation from political process. – Limit discretion and scope of powers.
  • Speed vs. delay. – six months or approve by default.
  • Consultation, consent of the governed. – Formal representation in rule-making.

Sorry if lists make you snooze, but I think it’s a good list, even if the bullets aren’t mutually exclusive. The items highlight the always-present choice between restraining government’s exercise of coercive power versus restraining and coercing the governed.

Cochrane then takes the reader on a “tour” of regulatory areas, including several aspects of financial regulation, health care, foods & drugs, the environment, the internet, campaign finance, national security, immigration and education. These sections are brief, but in each of these areas, Cochrane highlights negative consequences of regulation that illustrate government failure based on the dimensions given in his list of bullets. Here’s an anecdote from his section on environmental regulation:

Already, anyone opposed to a project for other reasons — like, it will block my view — can use environmental review to stop it. Delay is as good as denial in any commercial project.

The small story of Al Armendariz, head of EPA region 6 who proposed ‘crucifying’ some oil companies as an example to the others is instructive. He was caught on tape saying:

‘The Romans used to conquer little villages in the Mediterranean. They’d go into a little Turkish town somewhere, they’d find the first five guys they saw and they would crucify them. And then you know that town was really easy to manage for the next few years.

…we do have some pretty effective enforcement tools. Compliance can get very high, very, very quickly.’

According to the story, Armendariz shut down Range Resources, one of the first fracking companies. Range fought back and eventually a Federal Judge found in its favor. But an agency that operates by “crucifying” a few exemplars, explicitly to impose compliance costs, is ripe to choose just which exemplars will be crucified on political bases.

Cochrane closes by describing his vision of a “Magna Carta for the regulatory state” in order to protect “citizens from arbitrary power“:

It is time for a Magna Carta for the regulatory state. Regulations need to be made in a way that obeys my earlier bullet list. People need the rights to challenge regulators — to see the evidence against them, to challenge decisions, to appeal decisions. Yes, this means in court. Everyone hates lawyers, except when they need one.

People need a right to speedy decision. A “habeas corpus” for regulation would work — if any decision has not been rendered in 6 months, it is automatically in your favor.

Accomplishing great things is difficult, both in the physical world and in creating value in any form for which other free individuals will trade. By comparison, failure is easy, and so are regulatory decisions that precipitate failure. So often, so easily, so arbitrarily, and with little accountability, those decisions destroy freedom, value and our ability to improve human welfare.