This is one of two posts today by CPR member scholars evaluating NY Gov. David Paterson's recent executive order on regulations; see also Rebecca Bratspies' post, "Paterson's Executive Order: Win for Industry, Loss for Public Health and Safety."
Who knew? With his newly announced plan to require New York departments and agencies to look back at proposed and existing regulations, Governor Paterson placed himself squarely in the anti-regulatory tradition of Ronald Reagan, George H.W. Bush, and George W. Bush. Like Governor Paterson, these presidents created a look-back process to identify regulations that they said needed to be reformed. The history of White House look-backs suggest the New York is at a minimum misguided and could well be harmful to New York residents.
Shortly after being elected, President Reagan created the Task Force for Regulatory Relief, headed by then Vice-President George Bush, to create a list of regulations that were the most burdensome on business. As the name implies, the goal was not to strengthen regulatory protections. Facing reelection, the first President Bush announced a 90-day moratorium on new regulations and required regulatory agencies to undertake a look back. Given the timing, the plan appeared to be an effort to curry favor with conservatives and the business community, which is Governor Paterson’s motive, according to his critics. The second President Bush invited the public to send requests to the White House for regulatory revisions, which it passed on to the agencies, a process that was heavily dominated by requests from business interests.
Governor Paterson defended his plan as a way to reduce “red tape,” a typical ploy of regulation opponents. Because government needs information to adopt regulations and then to enforce them, it requires regulated entities to fill out forms. To those filling out the paperwork, this can appear to be government run amok, and sometimes it is. But most of the time it is not. Regulated entities have ample opportunity to point out to departments and agencies that reporting requirements are unnecessary before they are put in place, and there is no proof that government usually adopts them anyway. Still, if the Governor’s plan had been limited to reducing paperwork requirements, it would not be so alarming. But the plan isn't just about reducing paperwork, it's about changing -- weakening -- regulations.
The history of White House look-back on regulations presents four lessons. First, requiring agencies and departments suddenly to do a look back is extremely disruptive of on-going programs of regulatory protection. Even if the look-back does not result in the repeal or revision of appropriate regulations, it has the potential to disrupt departments and agencies for months, as staffers have to drop what they were previously working on. Second, although there is public participation, the process favors business interests because they usually have greater resources than consumer groups and unions to gear up immediately to carry the fight to the agencies undertaking the reviews. Third, the time frame of a month or two is simply too short to undertake a rational review process, producing a patch-work of look-backs that often picks which rules to reform based on which business groups have the most political influence. Finally, because of the short time frame of look-backs, costly regulations can become candidates for reform just because they are expensive, when in fact a less hurried effort would recognize that the regulations are appropriate in light of regulatory legislation and goals.
Look-backs should be an element of regulatory government, but they should be undertaken as part of an on-going regulatory process. This usually does not happen because legislators underfund agencies, presenting them with the dilemma of meeting new regulatory challenges or going back over old regulations. Governor Paterson would do a lot better for the people of New York if he supported new funding for agencies to adopt permanent programs of look-back reviews.
Sidney Shapiro, CPR Member Scholar; University Distinguished Chair, Wake Forest University School of Law. Bio.
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