Presidential candidates should talk about regulation

From “lyin’” to “low-energy,” the current election’s lowering of the rhetorical bar to levels that challenge even the most nimble limbo dancer is more than an affront to good taste. It is a squandered opportunity to spark debate on how to address the heaviest burden holding back our still-sluggish economy: the thousands of regulations and miles of red tape that inhibit hiring and recovery.

We hear a lot about spending in candidate debates and speeches. But federal regulations impose estimated total costs on the economy of $1.88 trillion, roughly half the size of the federal budget, according to our findings, published in the 2016 edition of the Competitive Enterprise Institute’s annual Ten Thousand Commandments report.

So while politicians from both parties loudly complain about “waste, fraud and abuse” in taxing and spending, the costs of regulation mean the federal government is 50 percent more bloated than even the most strident stump speech would suggest. Indeed, if federal regulations were their own country, they would comprise the world’s 10th largest economy, ahead of Russia and behind India.

In the past year, 3,410 new federal regulations covered everything from a 122-page definition of the term “solid waste” to energy standards for walk-in freezers. More are on the way this year, as the Obama administration likely prepares a possible midnight rush of new regulations before leaving office.

Most rules do get published in the daily Federal Register, which last year ran for 80,260 pages, the third-highest level going back to 1936. Regulations are supposed to go through a notice-and-comment process, where the public can either raise objections to or express support for upcoming regulations. But roughly a third of regulations get issued without that notice, according to the Government Accountability Office. 

Yet, the federal government’s lack of transparency is even worse than that. Beyond the 3,410 rules, even more regulating is actually done through less accountable means, such as agency guidance documents, notices, bulletins, circulars, and even blog posts—a growing and troubling phenomenon we like to call “regulatory dark matter,” because these rules don’t appear in the Federal Register. The regulatory state is significantly bigger than we think.

It would help if federal agencies were to publish annual report cards gathering this disparate information in one place. They don’t, but Ten Thousand Commandments provides a useful template they could follow. 

As people become more aware of the sheer size and scope of the federal regulatory state, they are likely to become more interested in reform—an opportunity the presidential candidates should be eager to seize. 

One reform option is the Regulations from the Executive in Need of Scrutiny (REINS) Act, which would require Congress to vote on all new regulations deemed as “major”—those with annual costs more than $100 million. It has already passed the House, but still awaits action in the Senate.

Another is the Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act, which would create an independent commission to comb through the 175,000-page Code of Federal Regulations, assemble a package of redundant and harmful regulations to eliminate, and submit it to Congress for an up-or-down vote without possibility of amendment.

Yet another idea comes from Canada, which recently enacted a one-in, one-out rule that bars agencies from enacting new regulations until they eliminate old rules of equivalent cost. 

Finally, publishing a regulatory “budget” similar to the government’s annual fiscal budget would encourage agencies to make priorities and recognize tradeoffs, rather than simply seek to enact as many rules as possible, without regard for the costs they impose on businesses and consumers.

While this year’s presidential circus hasn’t been the most edifying of spectacles, the opportunity to reduce regulatory harm is right there in the open for any candidate brave enough to pursue a serious economic reform program. One can hope.

Clyde Wayne Crews is vice president for policy at the Competitive Enterprise Institute, where Ryan Young is a fellow.