| 来源类型 | Article |
| 规范类型 | 评论 |
| Advice for the president-elect from eight regulatory experts on saving the kingdom | |
| Murray L. Weidenbaum; Antonin Scalia; Robert W. Crandall; james-c-miller-iii; william-a-niskanen; Robert B. Helms; Marvin H. Kosters; thomas-gale-moore | |
| 发表日期 | 1980-12-07 |
| 出版年 | 1980 |
| 语种 | 英语 |
| 摘要 | Several months ago, Regulation asked a group of experts for their personal views and counsel on the most important problems the next administration would face in key regulatory areas. Their responses are presented here. Reforming Government Regulation Murray L. Weidenbaum According to most of the polls, the American public is keenly aware of the adverse economic effects of regulation—less productivity, less innovation, more inflation, and much grief. But the same polls show strong support for government efforts to achieve such social goals as a cleaner environment and safer work places. When Ronald Reagan is sworn in as President on January 20, 1981, he will have the opportunity to embark on a new approach to government regulation that pursues two objectives simultaneously: (1) doing a better job of achieving regulatory goals while (2) reducing regulatory burdens. Not only is it possible to have it both ways—it is high time! The variety of regulatory activities requires a varied approach to regulatory reform. In the case of traditional economic regulation, which typically creates artificial monopolies or other market interferences to shield specific segments of the economy from competition, the dismantling of controls will go far to enhance consumer welfare. Experience with the elimination of rules by the Civil Aeronautics Board provides a strikingly successful current case in point. Examples of other targets for economic deregulation are not hard to find, particularly in the fields of transportation, communications, and energy. In the case of the newer social regulation, which typically attempts to correct imperfections in the market (so-called externalities, meaning the costs imposed by one segment of the economy on another), the approach should be to seek out the most effective and least burdensome methods of achieving the desired objectives. Too often at present, the costs of the “government failure” that poor regulation represents far exceed the costs of the “market failure” with which regulation attempts to deal. The traditional notion that the presence of market failure is adequate justification for government intervention badly needs to be revisited; “market failure” may be a necessary but is hardly a sufficient reason. For some regulatory programs, such as efforts to reduce product hazards, the provision of better public information may enable consumers themselves to make more sensible trade-offs (for example, between safety and price) than any standards set in Washington. For other programs, such as the reduction of air and water pollution, the substitution of pollution taxes for detailed standards may achieve the desired objectives at lower cost. Numerous analytical tools are available to the policy maker who means business about regulatory reform: benefit-cost analysis of proposed regulations to determine which are worthwhile, cost-effectiveness analysis to identify the most efficient means of achieving the objectives, and sunset reviews to determine which government programs are still desirable in the light of changed circumstance. Many of these reforms require new legislation, but by no means all. The really fundamental challenge in developing a regulatory reform program is not identifying needed changes but determining how to start. The beginning of a new presidential term provides the opportunity. The President’s three basic powers provide a useful frame of the possibilities: making appointments, proposing legislation to Congress, and issuing executive orders. The Appointment Power The top regulators—be they agency administrators or commission chairmen—typically serve at the pleasure of the President. Some require Senate confirmation and serve fixed terms—as do commission members, of course. Acting obviously within available statutory discretion, the new Reagan administration should promptly use the appointment power to install reform-oriented leadership at the various regulatory agencies in order to establish at the outset a new tone and a new direction. The importance of this cannot be overstated. Under a reform-oriented administrator, the ultimately unsuccessful battle in the courts to establish a “reasonable relationship” between benefits and costs in OSHA’s benzene standard would have been unnecessary because such a person would have attempted from the start to fashion a standard that more nearly reflected the desired relationship. The selection of new appointees requires great care. Much can be learned from the sad experiences of the last four years. Appointing uncritical enthusiasts for expansion of government regulation inevitably produces a regulatory regime characterized by excessive burdens and cavalier disregard of economic impacts. Of course, too extreme a swing of the pendulum in the opposite direction can be equally undesirable. Those regulatory programs that are deemed to be worthy of continuation must be managed by people who are sympathetic with the important social objectives to be achieved—and who are equally concerned with minimizing the costs and intrusions. In all cases, the appointees should be men and women who avoid simplistic categorizations of “consumer interests” and “business interests,” with a presumption of unalloyed good or evil attached to either category. We need open-minded regulators who understand that good policy making means a careful balancing of important and bona fide considerations—clean air and lower unemployment, safer products and less inflation, healthier working conditions and rising productivity. As noted before, not only can we have it some of both ways, but we ought to. The Legislative Power The fundamental shortcomings of government regulation result more from statutory than from executive deficiencies. After all, every regulation is issued pursuant to an act of Congress, and every regulator is paid from a congressional appropriation. There is an urgent need to change the fundamental regulatory statutes. President Reagan’s power to effect legislation will be considerable: he will be dealing with a Republican Senate and with a House that must be impressed—initially at least—by the size of his popular mandate. And like all presidents, he will be able to develop and attract public support that will ensure particular legislative proposals a place high on the congressional agenda. Here are some of the proposals that could be introduced: • Statutes phasing out economic controls that interfere with marketplace competition. Prime examples include the regulations imposed by the Interstate Commerce Commission, the Federal Communications Commission, the Federal Maritime Commission, as well as the Federal Energy Regulatory Commission and the Energy Regulatory Administration of the Department of Energy. Each of these agencies either creates artificial monopolies or otherwise inhibits the operation of those basic market forces that truly protect the consumer. • Statutes revising social regulation that pursues unrealistic goals or applies unreasonable methods. Such regulation ranges from the “zero discharge” goal of the Clean Water Act to the “zero risk” provision of the Delaney amendment of the Food, Drug, and Cosmetic Act. • Statutes mandating benefit-cost analysis and cost-effectiveness studies before new regulations are issued. For most programs, a statutory requirement could be imposed similar to that applied by the U.S. court of appeals in the OSHA benzene case. For each new rule they propose, the regulatory agencies should be required to demonstrate at least a reasonable relationship between the costs imposed and the benefits produced—and to demonstrate further that they have chosen the most efficient (least costly) method of achieving those benefits. The approach taken in the Carter administration’s so-called reform bill—which would merely require the ritual performance of some economic analysis, undertaken by unsympathetic regulators at that—would have little effect beyond regulatory delay and added cost; but prohibiting the regulator from acting except where the total benefits to society demonstrably match or exceed the costs would be a major and welcome departure from current practice. Government regulation (if imposed at all—and not regulating is often a live option) should be carried to the point where the incremental costs equal the incremental benefits, and no further. Overregulation, that is to say, is the economist’s shorthand for regulation where costs exceed benefits. Critics of cost-benefit analysis tend to forget that it is a neutral policy concept, and that it need not always be applied in dollar terms. Indeed, the costs as well as the benefits may at times properly be measured in terms of human life. For example, in analyzing a potential ban on the use of nitrites for curing meat, the costs may properly be viewed as the lives put at risk as a result of increased botulism, while the benefits would be the lives not put at risk as a result of increased carcinogenic exposure. That is, human lives weigh on both sides of the scale. In addition to imposing cost-benefit requirements, the new legislation must address the manner of enforcing them. Reluctant regulators can merely go through the motions of studying the economic effects of their proposals—and then proceed as they originally intended. A regulatory oversight office not directly involved in regulation, such as the one recommended below, should be authorized to set government-wide standards and guidelines for performing the economic evaluations, including the estimation of benefits and costs. The determination of the interest rates to be used in discounting future costs and benefits, for example, should not be a matter left to the judgment of an agency attempting to justify its own actions. • Greater attention in the congressional budget process to the managing of regulation. Although the total costs that regulatory agencies impose on society are enormous, the proportion of federal appropriations that they consume is minuscule. As a result, their programs have generally escaped the intensive scrutiny that the budget process can provide. This could be changed by congressional adoption of the following principle: when an agency’s existing regulations generate more costs than benefits, the agency’s budget for the coming year will be reduced (and perhaps even vice versa!). That could be a powerful incentive for agencies to seek more effective approaches. As a starter, the Special Analyses volume that accompanies the annual U.S. budget document should contain a tabulation of the expenditures of all federal regulatory programs. • A one-year moratorium on new regulations. Because of the rapid proliferation of regulatory rules and programs in recent years, all of us need a breathing spell in which to adjust. President Reagan should urge Congress to take such action as necessary to produce a one-year moratorium on new regulations. Of course some new emergency rules will be necessary, especially in the health and safety areas. But such exceptions can be handled in a fashion that preserves the integrity of the moratorium. The approach I have in mind is modeled after the offset policy adopted by the Environmental Protection Agency, whereby a new facility can be built in certain areas only if old facilities generating equal or greater pollution are closed down. Specifically, exceptions to the moratorium should be granted only on the condition that their economic impact be offset by the elimination or reduction of government regulations of at least equal cost. This “offset” approach has the added advantage of providing a partial movement toward a regulatory budget. Although a comprehensive regulatory budget may be a highly desirable method of controlling government regulation, it is doubtful that the numerous conceptual and data problems can be solved soon enough to permit its early adoption. The approach I suggest here would, in effect, be one step toward costing out the effects of the various regulatory programs and requiring government agencies to live within assigned fiscal limits. The Administrative Power Even before and even without the foregoing legislative initiatives, there is much the President can do through the administrative power vested in him and his appointees to help bring about the same results. Under existing laws, many agencies have sufficient discretion to phase out counterproductive economic controls, to abandon unrealistic goals and unreasonable methods, to punish (or reward) through their internal budgeting processes those administrative units whose policies are inefficient (or efficient), and to reduce the issuance of new regulations to a minimum. In addition, administrative action can accelerate the passage of needed legislation by undoing the actions of the current administration that have produced the appearance but not the substance of improvement, and thus have dissipated the pressure for reform. Specifically, President Reagan should act quickly to end the existing “paper-shuffling” approach to administrative regulatory reform. He should abolish the Regulatory Council, a relatively new body that has become for the most part a protective association for the regulators (who constitute its entire membership). Its rhetoric and reports have served primarily to contain rather than to meet the pressures for reducing regulatory burdens. Second, to spearhead the regulatory reform effort, he should establish a new White House office, either placing it within OMB or giving it separate status. This office would assume the regulation monitoring, review, and information-dispensing functions now performed by the Regulatory Analysis Review Group, the Council on Wage and Price Stability, and the Regulatory Council. Third, he should totally revamp President Carter’s Executive Order 12044, which deals with regulatory analysis, so that the resources now expended in wheel-spinning review can be shifted to the more substantive efforts proposed here. Although defenders of the status quo doubtless will not believe it, these proposals for drastic regulatory reform do not constitute a Neanderthal plea to ignore the real problems of pollution, discrimination, and so on. Precisely to the contrary: they are offered in the belief that every task government undertakes should be performed ably and that the existing regulatory process simply is not working well. The regulatory device must be seen as a powerful tool to be used only reluctantly, if at all, and always with great care and discretion. This is the essence, of course, of choosing priorities in a government that genuinely wants to limit the burdens it imposes on society. In view of the magnitude of the resources devoted to regulatory purposes, the public deserves better than it has been getting. ■ Federal Trade Commission Antonin Scalia In the past four years the Federal Trade Commission (FTC) has vied with the Occupational Safety and Health Administration (OSHA) for the title of Most Unpopular Agency. But if one rates not merely the magnitude of the unpopularity, but also the inherent difficulty of achieving it, the FTC has to be the clear winner. OSHA, after all, is a new and relatively partisan (that is, labor-oriented) agency, imposing a novel and controversial federal program; the FTC, by contrast, is one of the oldest independent agencies (established in 1914) applying long-standing federal policies against monopoly and consumer fraud. But in the face of all obstacles, the FTC succeeded in alienating even a Democratic-controlled Congress by pressing novel antitrust theories and imposing what were regarded as excessive consumer protection requirements. Personnel Changes It is the conventional wisdom that most of the problem can be solved relatively quickly under a new administration, by replacing the antitrust and consumer-activist “extremists” now holding policy positions. This is not necessarily true—for neither the FTC nor the other independent regulatory commissions. The five commissioners of the FTC, like those of the other “independents,” are appointed for staggered terms—in the case of the FTC, terms of seven years. They may not be removed by the President, except for cause. Since Chairman Michael Pertschuk has indicated that, if and when replaced as chairman, he will serve out his term as commissioner, there is no certainty of a change in the make-up of the commission until next September, when the term of Paul Rand Dixon expires. The new President will have the immediate authority to designate a new chairman from among the current commissioners—and he might acquire the power to select a new chairman and commissioner from the outside, by offering one of the current commissioners a post elsewhere in the administration. The chairman’s powers, at the FTC as at most independent regulatory agencies, include the power to appoint and supervise personnel and to distribute the agency’s business among them. These powers are limited, however, by the requirement that their exercise “be governed by general policies of the Commission” and that appointment of the heads of major administrative units “be subject to the approval of the Commission.” In any case, the power to appoint staff, however freely exercised by a Reagan-designated chairman, is not necessarily the power to produce prompt and significant policy changes in the direction of greater regulatory restraint. The agency’s civil service infrastructure cannot be replaced, and the powers of the new policy-level staff appointees are limited. For example, new initiatives which those appointees and their chairman would rather not pursue can be pressed by the career staff, and ultimately placed on the agency’s agenda, through direct resort to the other commissioners. And even if the philosophical makeup of the commission majority changes relatively soon, there will still be a large amount of agency business from the last administration—pending rulemakings and prosecutory actions—that is already in the pipeline and cannot realistically be turned off. There is, moreover, an absolute limit to the degree of restraint that can be imposed upon a mission-oriented career bureaucracy without utterly destroying morale and effectiveness. The existing commissioners—and even new appointees, once appointed and insulated from the President’s policy direction—may not be willing to pay that price. More Precise Statutory Standards Thus, any expectation of prompt and dramatic reversal of activist policies at the FTC (and other independent regulatory agencies) by reason of mere change in personnel may be unrealistic. But in any case, dramatic change accomplished in this fashion would be less a solution to the commission’s recent excesses than the manifestation of the root problem that permitted those excesses. It is, or should be, exceedingly strange to entertain the notion of basic change in the nature and extent of federal antitrust and consumer protection prohibitions without any change in federal antitrust or consumer protection laws. We are not contemplating any radical change, under a Reagan administration, in the content of the ordinary criminal laws enforced by the Department of Justice, or the tax laws enforced by the Department of the Treasury, or the farm programs administered by the Department of Agriculture, except to the extent that that administration may be successful in persuading Congress of the worth of its legislative proposals. At the FTC, however, and in the area of economic regulation generally, we seem to have become accustomed to the idea that extensive restrictions can be imposed—or, for that matter, removed—without any action by Congress, or even (in the case of the independent regulatory agencies) by the President. Replacing “their” bureaucracy with “ours” does not solve the underlying difficulty. The point is that no bureaucracy should be making basic social judgments. If we no longer have (assuming we ever did) a broad consensus on the meaning of the FTC’s mandate to prevent “unfair methods of competition” and “unfair or deceptive trade practices,” then we must devise some new and more precise statutory directives. It is perverse to delight in our ability to change the law without changing the laws. Thus, one of the Reagan administration’s first tasks with respect to the FTC—as with a number of other agencies—should be an attempt to amend the agency’s statutory, charter. And the task is best undertaken promptly, when the recollection of the commission’s recent excesses under its present charter remains fresh. To be sure, statutory directives can never be entirely precise, and the agency will always retain some considerable degree of discretion; but the room for improvement is substantial. For example, some of the FTC’s more extreme consumer-protection initiatives could be eliminated simply by specifying that nothing which in context would be nondeceptive for a person of average intelligence and experience can constitute a deceptive trade practice, unless it is actually intended or calculated to deceive the more gullible. And a clear statutory disavowal of the supposed “double incipiency” reach of FTC antitrust authority would do much to restrain excesses in that field. Revision of Statutory Powers In addition to alterating the commission’s statutory objectives, there is room for alterating its statutory powers. Specifically, the consumer protection rulemaking powers conferred in 1975 by the Magnuson-Moss Act should be reconsidered. Some would favor eliminating such rulemaking entirely. The problem is that the same effect of an industry-wide ban can be achieved through adjudication, which provides less opportunity for comment and objection by all affected parties. At the very least, however, Magnuson-Moss should be amended to eliminate the current power to impose “remedial” measures by rule—that is, not merely to ban actual unfairness or deception, but also to prohibit perfectly legitimate action that might facilitate unfairness or deception. The FTC’s rulemaking authority in the antitrust field should also be addressed. The commission claims to have such power and has periodically threatened to exercise it, though nothing of substance has been produced. Whether the power actually exists is the subject of some legal dispute, and Magnuson-Moss carefully refrained from addressing the point. Even many of those who regard rulemaking as appropriate in the consumer protection field consider it inappropriate for antitrust. The power should be clearly abolished. More fundamental, however, is the question whether the commission should have any antitrust responsibilities at all, since they almost entirely duplicate those of the Department of Justice. Total elimination of the commission’s antitrust powers would be politically most difficult; there also is some policy argument against it, namely, that it is only the commission’s pro-competitive, antitrust responsibilities that have given it any internal balance and prevented it from becoming, in effect, a single-mission consumer protection agency. Perhaps the most that can be recommended along these lines at the present time is the establishment of a task force to consider the antitrust enforcement issue. It might consider, at the same time, consolidation within the FTC (or elsewhere) of the various, and sometimes overlapping, consumer protection responsibilities now entrusted to other agencies—the Consumer Product Safety Commission, the Food and Drug Administration, and the Department of Agriculture, to mention only a few. ■ Environmental Protection Agency Robert W. Crandall To those with just a citizen’s eye view of environmental issues, the next few years would seem to offer a difficult choice. Do we seek further improvement in the quality of life through tighter air, water, and toxic-substances regulations? Or should we now relax environmental regulation in an effort to restimulate capital formation, productivity growth, and improvement in the average worker’s standard of living? Which is it to be? Better quality or more growth? Even so elementary a statement of the choices in environmental policy is seriously misleading. So slight is our systematic information on the effectiveness of current policies in improving the quality of the air we breathe, the water we drink, or the land we live on that we cannot conclude that a little more of this or a little less of that type of regulation will necessarily be good or bad. The scientific basis for setting standards and the framework for making decisions in the face of uncertain evidence are woefully lacking. Monitoring and enforcement policies are so weak as to cast doubt on the effectiveness of most regulations. In fact, we cannot be sure that current environmental policy is working at all, because the Environmental Protection Agency (EPA) is so constantly pressed by requirements to promulgate new standards and to defend itself against law suits that it cannot begin to address more basic issues involving the design and execution of its policy. It is not surprising that as ambitious a set of mandates as those laid on EPA by Congress in the last decade should be in disarray. No organization could possibly cope with the continuing flow of legislation and the detailed regulatory responses required of EPA. How can the agency be expected to determine the “best available control technology,” the “reasonably available control technology,” and the “lowest achievable emissions rate” for six or seven different pollutants emanating from each of thousands of sources in hundreds of different industries? Add to all this the requirement for approving fifty state implementation plans for achieving air-quality standards—plans that include detailed standards for all existing sources of all major air pollutants—and you have a regulatory task of monster proportions. In addition, EPA must set ground rules for the growth in pollutant levels in various nondegradation areas of the country (areas whose air quality is better than EPA’s national standards) and establish hazardous pollutant regulations, and also supervise and enforce congressionally set emissions standards for new cars. And this is not all. For all of the above is only a partial listing of EPA’s duties in regulating just air pollution. EPA also must set pesticides standards, new-chemical testing procedures, water-pollution standards, drinking-water standards, hazardous-waste standards, as well as even noise-and-radiation standards. No one sitting down to design a rational system for reducing environmental degradation would have devised such a complicated and detailed regulatory program—a program that in all likelihood would collapse from its own weight within a decade or two. The inefficiencies and distortions created by this mountain of standards would only be ameliorated by the fact that much of the program is unenforceable. Small comfort! EPA is now most unenviably trapped. Industry criticizes it for setting unreasonable standards. Environmentalists criticize it for lack of enforcement. EPA has been reduced to muddling through—enforcing where it can, promulgating rules three or five years after statutory deadlines have expired, extending compliance deadlines for powerful industries, and simply looking the other way when asked to provide scientific evidence to justify its regulations. In approaching environmental policy, the Reagan administration should take a long view. The most it is likely to be able to accomplish in the next few years is to begin to address some of the more pressing problems that stand in the way of new approaches to rational environmental regulation. Improvement of Scientific Information. The fiction is that EPA’s regulations are based on firm knowledge of the health effects of various pollutants. In fact, the scientific basis for most regulations is seriously deficient. In many cases, moreover, the regulators are not using even the information available or are not using it systematically. Part of the problem lies in the failure of EPA’s office of Research and Development; but the blame must obviously rest, ultimately, with the consumers of this information—the agency’s decision makers. One major example concerns the smog (or photochemical oxidant) ambient air-quality standard. Given the importance of the smog issue at EPA and the central role of automotive emissions, there ought surely to be great interest in estimating the health effects of exposure to acute smog levels. In fact, EPA could cite only very thin evidence in support of its proposed 0.10 parts per million standard (for ozone) or its final standard of 0.12 parts per million. It sanctions the expenditure of billions of dollars a year in controlling so-called precursor emissions but relies heavily on just one study of six exercising males to “justify” its action. Clearly, had more effort been devoted to researching these health effects over the past eight or ten years, a sounder policy judgment could have been reached. Improvement in Monitoring Capabilities. One of the most frustrating aspects of current environmental policy is the insufficiency of systematic monitoring of important sources of pollution. Without consistent measures of discharges, policy makers cannot enforce current standards evenly, allow economic incentive systems to operate, or have any way of knowing if environmental quality is improving. Yet EPA does not now have the capacity to monitor even the major sources of pollution. In many cases, “compliance” equals nothing more than the polluters’ unaudited assurances that they are meeting applicable regulations. The 1977 Clean Air Act amendments instructed EPA to improve its monitoring capabilities for air pollution, and EPA has begun to respond. But it is not clear that a sensible statistical sampling approach to monitoring and enforcement has been developed. This is no easy task, to be sure, particularly when discharge rates are volatile and transport characteristics are imperfectly understood for most pollutants. But, however difficult, a regulatory program that cannot develop a monitoring system is doomed to failure and provides no adequate justification for spending billions of dollars a year on control equipment. Elimination of the New-Source Bias. In view of the difficulty of enforcing standards for older industrial plants, Congress has instructed EPA to set much tighter standards on new sources of air and water pollution. This policy tends to discourage modernization, reduce capital formation, and slow productivity growth. These are effects that would hardly be welcome at any time; but, given the country’s problem with stagflation, we certainly cannot afford them now. EPA’s recent experience in setting sulfur oxides (SO2) policy for new electric utility plants provides the best example of just how pernicious this policy can be. In 1977 Congress enacted a “best available continuous emissions reduction” technology standard for all new coal-fired sources of SOx and particulates. All new plants are required to have flue-gas scrubbers regardless of the content of the coal burned—in order to overcome utility executives’ reluctance to use scrubbers and to protect midwestern and Appalachian miners of high-sulfur coal from the natural competition that was developing from low-sulfur western coal. EPA’s first effort to write this requirement was a standard so tight that many electric utilities would have delayed replacing their older plants. Emissions would have been even greater than under a somewhat looser standard, and control costs substantially higher. EPA was proposing a standard that would increase costs to the point of actually increasing emissions! Only equipment suppliers could have welcomed such madness. This bias against new sources pervades environmental regulation; it is present in most health, safety, and even energy conservation regulation. New chemicals are to bear a heavier burden of proof of safety than old chemicals. New buildings are targeted for energy standards, not old ones. New cars have tighter pollution standards than used cars. An end to this approach in all regulation can only add to the country’s ability to grow and prosper. Sensible Penalties Policies. Environmentalist and policy makers seem at least to be interested in developing economic incentive approaches to environmental policy. The “delayed compliance” penalty—requiring polluters to pay in proportion to their savings from nonco |
| 主题 | Uncategorized |
| URL | https://www.aei.org/articles/advice-for-the-president-elect-from-eight-regulatory-experts-on-saving-the-kingdom/ |
| 来源智库 | American Enterprise Institute (United States) |
| 资源类型 | 智库出版物 |
| 条目标识符 | http://119.78.100.153/handle/2XGU8XDN/235274 |
| 推荐引用方式 GB/T 7714 | Murray L. Weidenbaum,Antonin Scalia,Robert W. Crandall,et al. Advice for the president-elect from eight regulatory experts on saving the kingdom. 1980. |
| 条目包含的文件 | 条目无相关文件。 | |||||
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