Regulating Regulation

In July of 2000, after months of deliberation and fierce lobbying from interested advocacy groups, after determined research and debate and consternation, the U.S. Department of Agriculture (search ) finally issued its much-anticipated ruling:

Henceforth, the majority of the holes in every slice of Grade A Swiss cheese (search ) sold in America would need to be between 3/8 and 13/16 of an inch in diameter. This represented a sea change from the previous guidelines, which set Swiss cheese holes parameters at 11/16 of an inch to 13/16 of an inch.

Also, “the cheese shall be properly set and shall possess well-developed round oval-shaped eyes which are uniformly distributed.”  Since 1953, the USDA has had a Swiss cheese team of overseers, and employs a team of Swiss cheese graders, who evaluate the holes in your cheese using 22 different classifications, including “cabbage, collapsed, dull, dead, frog mouth, gassy, nesty, one-sided, underset, or uneven.”

I get the Swiss cheese story from a terrific new book by Washington Post reporter Cindy Skrzycki (search ) called The Regulators:  Anonymous Power Brokers in American Politics, (Rowman & Littlefield, 2003.)  Skrzycki’s book is quite an accomplishment. It’s a book about federal bureaucracy -- perhaps the dullest, driest, most mundane subject matter imaginable -- and Skrzycki makes it fascinating.

But the book is also infuriating. Skrzycki explains in great detail how virtually every nook and cranny of our existence has been checked, double-checked, measured, detailed, tasted, spit out, and impact-studied by a crack team of federal bureaucrats. She details, for example, a fierce fight between the FDA, Tic Tac, Altoids and Frisk Refreshing Tablets over what the official serving size for breath mints ought to be.

There are about 4,500 new regulations issued every year. The Federal Register (search), the official listing of all federal regulations, swelled to a whopping 75,606 pages in 2002, according to the Cato Institute’s Clyde Wayne Crews, Jr. If you’re of the mind that Democrats are more prone to regulation than Republicans, the 2002 Federal Registry -- under the Bush administration -- was the thickest ever, by about 1,000 pages. Last year, on average, the federal government issued about 300 new regulations each business day.

The Office of Management and Budget (search ) estimates that federal regulations cost businesses between $500 and $600 billion each year. Those costs include paying lawyers to merely scan the Federal Registry each day to see if the most recently issued rules affect the business they work for. Crews puts annual compliance costs closer to $860 billion. Many times, it’s impossible for a company to comply with one regulation without violating another.

Compliance costs are felt most by small businesses, which can’t afford expensive legal teams to keep tabs on new regulations, or, for example, to replace each employee’s computer keyboard when the Department of Labor (search ) decrees that certain keyboard designs could lead to carpal tunnel syndrome.

In fact, the big corporations who understand the regulatory game can actually benefit from it. They can lobby for expensive regulations only the largest corporations can afford, effectively keeping upstarts and competitors at bay.

And though most all regulation is a burden on the free market, not all regulation is necessarily bad for business. In the above case of cheese, for example, cheesemakers get the benefit of a government “Grade A” seal on their cheeses at taxpayer expense.  If it’s really necessary that our cheese be “graded” -- if consumers really want a respected seal of approval on their gouda -- it’s likely that without the USDA, a private company would emerge to provide the service of cheese-grading.  Instead, cheese sellers get to advertise their cheese as top-grade, at the expense of taxpayers.

All of these regulations carry the weight of law, yet none of them are actually voted on by Congress, and a sparse few are ever aired for public debate. There’s also little oversight, or any attempt to see if the regulations issued actually achieve their intended effect. Since about the time of the New Deal (search), Congress has been delegating vast lawmaking powers to the ever-expanding roster of federal agencies, mainly because Congress wants to pass more laws than it has time to actually vote on.

The whole process is an end-around the Constitution. Delegation makes lawmaking a breeze. It’s far easier for a bureaucrat or political appointee to issue a decree than for a bill to make its way through subcommittee, committee, a floor vote in both houses of Congress, then sit for a signature from the president.

But there is a bit of hope, however faint.

This Congress a small group of principled lawmakers have introduced a bill that would require Congress to vote on and approve any and all regulations that carry the weight of law. How, you’re wondering, could Congress possibly debate and vote on 300 new laws each day? How could they possible give an up or down to 75,000 pages of laws every year?

They can’t, of course. And that’s pretty much the point. Rarely does Congress pass a law that gives us more freedom, that kills off an unneeded government program or that lets us keep more of our money. Most laws shave just a bit more liberty from the rights we were born with. So lawmaking should be difficult. It ought to be tiring and tedious and filled with debate and deliberation.

The bill requiring congressional approval of all new federal regulations would do just that. It would make lawmaking much more difficult. It would make the jobs of our elected representatives much more difficult. It will mean fewer laws, fewer regulations and it will shrink the role of federal agencies in our day-to-day goings-on.

And that’s exactly why it hasn’t the slightest chance of passing.

Radley Balko is a writer living in Arlington, Va. He also maintains a Weblog at

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