In defense of regulation

Last, markets, even when they do not fail, recognize only economic
values. That is perhaps their function, but as a nation, we are much more than that.
Government’s role is not simply to police markets, but to build and sustain the
society in which we wish to live. It was government that fought a civil war to fulfill
the nation’s commitment to “all men are created equal,” reduced the exploitation
of workers and consumers in the 1880s-90s, and addressed racial and gender discrimination
and a despoiled environment in the 1960s.

{mosads}Nevertheless, we often hear that regulation restricts liberty,
an argument that ignores the capacity of markets likewise to diminish liberty. If
someone has cancer and cannot afford adequate medical treatment, his life and liberty
is limited, not enhanced, by a market system that requires private payments to obtain
medical care. If someone dies from eating a poisoned hamburger, her life and liberty
is limited, not enhanced by a market system. When government assists individuals
with medical care and prevents the contamination of food, it is expanding their
freedom.

Opponents also seek to delegitimize regulation by pretending
that the regulatory system operates outside a system of checks and balances. None
of that’s true, of course. Regulators act pursuant to laws passed by Congress and
signed by the president, the very embodiment of our democratic system. Let’s remember,
too, that regulatory agencies are subject to a thick web of procedural requirements,
presidential and congressional oversight, and judicial review. And if Congress wants
to override a regulation, it can do so by a simple majority vote, if the president
also signs the legislation.

Moreover, there is a good reason to have agencies. In today’s
complex world, every liberal democracy relies on regulators to assemble and assess
scientific and other technical data in order to produce smart, informed regulation.
The idea that Congress would sift and understand this complexity in the same manner
is fanciful. Proposals to send every regulation through Congress for approval are
just thinly veiled efforts to put congressional gridlock to work in service of preventing
the Clean Air Act, the Occupational Safety and Health Act, the Food Safety Modernization
Act, and other landmark laws from being implemented.

The responsible scholarly literature — as opposed to calculations
cooked by business-friendly think tanks — has refuted the opponents’ claims of regulatory
costs far in excess of the benefits of regulation. The same literature reminds us
that not regulating also has costs — costs paid by the American public rather than
by regulatory entities.

Consider the Environmental Protection Agency’s long-delayed revisions
to air quality standards required by the 1990 Clean Air Act Amendments. If it succeeds,
and if the anti-regulation forces in Congress don’t derail it, the rules are projected
to save 237,000 lives by 2020. If the rules are delayed further or scuttled altogether,
that’s the cost of inaction — actual lives lost due to air-pollution-related illness.

 Then there’s climate change. We’ve tried inaction, and the problem
has grown more severe. Congress has failed to act, with the same forces opposed
to regulation leading the charge against a law tailored to the specific causes of
climate change. So it is left to the EPA and others to use existing statutory authority
to reduce our planet-choking greenhouse gas emissions.

 Like any aspect of government, the regulatory system is not perfect.
But the long history of regulation in the United States tells a very consistent
story: Smart regulation, pursuant to laws passed by Congress, saves lives, protects
the economy, preserves the environment, safeguards workers, makes automobiles safer
and more. Over our history, one overriding truth emerges: unregulated markets will
not protect us or produce the type of society in which most of us would like to
live. 

Shapiro is vice president
of the Center for Progressive Reform and holds the University Distinguished
Chair in Law at the Wake Forest University School of Law.