Jan 05 2012

Sic Semper Regulationes

There’s often a lot of hostility toward “government regulations.” I’m going to muse on that today, with a long general contemplation on the whole nature of this fashionable outrage. It comes in all varieties.

There are people who think laws are so needlessly complicated (a typical bill nowadays can be ten thousand pages long) that surely we can cut it all down to just a handy pocketbook. Why, Herman Cain said he’d require all laws be just three pages long, huzzah! Problem solved. That horror of complexity is a natural gut reaction. But it’s not really a reliable guide to how things should be done. I doubt Herman Cain’s company bylaws or operations manuals were three pages long. And how long do you think all the contracts he had to sign were? A country is way more complicated than a pizza franchise. The instruction manual for your average naval ship (all that the crew must learn and reliably follow to operate it) would fill ten thousand pages easy, and yet you wouldn’t think it wise to cut it all down to three pages. That ship would be at the bottom of the sea before the year was out (“paint locker…it’s okay to smoke in there, right?”).

Then there are people who think regulations always just get in the way. That regulations just stifle business and slow everything down and screw everything up and cost too much to enforce (“Why can’t we just do whatever the hell we want?”). That they are badly informed and always suck and just make the government too meddlesome (“And what do they know anyway?”). And such like, and so forth. But most of this hostility is based on mythology rather than fact. Not all. But most. Politics has sort of become the new religion. You pick a faith, declare yourself for it, then preach all of its myths and legends that serve to reinforce its dogma, and don’t listen to reason when the facts don’t quite line up with it.

I’m a moderate. I’ve written about political theory before. I register democrat because my political system requires me to in order to have any real influence on elections. But I don’t really espouse any party line. They are all just exercises in fiction. I have sympathies with libertarians, but think their faith doctrine doesn’t line up with reality as neatly as they fervently claim. I have sympathies with fiscal conservatives, but conservatives never just stay fiscal. I have sympathies with liberals, but more often than not they are just too stupid to function. I have sympathies with modern democratic socialists, but their ideas about economics often tend to be suicidally naive. I have sympathies with free market capitalists, but their ideas about economics also tend to be suicidally naive. So you can’t really peg me. I do not espouse a faith.

I’m more committed to reality. And reality is messy, complicated, and does not agree with anyone’s political faith doctrine. I thus see things differently. People bitching about government regulations is just the latest example that’s put a bee in my bonnet. (Figuratively speaking. Obviously I don’t own a bonnet. It’s the 21st century. I’m more of a tuque man now.) Historically, government regulation of commerce was one of the first things people formed governments for. And in general it makes a lot of sense, and is just a logical extension of what everyone (except maybe lunatic anarchists) agree a government should always do: protect people from death and injury and fraud and robbery.

One of the oldest examples can be found in Hammurabi’s Code. (You know, that 1772 B.C. law code that later the Hebrews stole, pared down, dinked all up with superstitious homo bashing and a disturbing obsession with goatfucking, and then claimed some backwoods storm god told it to them on a mountain somewhere. Hammurabi got his code from a top notch sun god, which is way better than a pinny anny storm god.) That contained, among other things, a section on building codes, the gist of which was that any builder who did shoddy work had to pay for any resulting damages, up to and including death, if any people died because of his shit work. (Note that that’s one of the things the Hebrews cut out of their version; since they were just a couple steps above rock-banging primitives at the time and didn’t actually build stuff, their god didn’t think they had any need of building codes. Their god didn’t do much thinking ahead. Stupid storm gods.)

Now it’s kind of obvious that there should be a law about this. If the government is supposed to protect you from me banging you over the head with a rock, then surely the government is supposed to protect you from me banging you over the head with a house. In Sense and Goodness without God (VII.5.2-5.3, pp. 391-95), I concluded that any regulation that prevents something happening that you could sue over anyway, is a good regulation the government has every business of enforcing and will make the world a better place. Because making it into a lawsuit puts all the expense of getting justice on the victim, which is precisely what we form governments to prevent. The whole civil tort system is really just the government being lazy. (As an example, under Roman law ordinary theft was not a crime but a civil tort. Over time, as government gets more effective, it stops being lazy like that and starts taking charge of the law–evidence: now all theft is a crime.)

Another famous example is the first constitutional government of Athens. One of the very first things they did was enact and enforce government standards of weights and measures. Now it was a crime to sell someone a “gallon” of milk, after deciding on your own what exactly a “gallon” was. A pound of gold was now everywhere the same amount of gold, or you’re busted. Eventually they even established an official “nut measure” (shown left). The net economic effect was tremendous: everyone now traded with and in Athens. With knowledge that the government would back anyone who got cheated by wonky weights and measures and stop that shit right out, trade flourished and the Athenian economy boomed. They became a great empire. Until they started funding a massive standing military that was constantly fighting too many foreign wars of intervention in support of big business interests that ran up crushing debts that tore down their entire empire, never to be great again. (Wait, that sounds famili…oh, crap.)

The point is, history more than confirms that government regulation of business and commerce is wise, necessary, beneficial, and better than common sense. That’s why the Founding Fathers enshrined it in the Constitution as one of the fundamental enumerated powers of Congress. Article I, section 8. Not only is the power to “regulate commerce” explicitly granted, but six of the thirteen listed powers there directly involve regulating trade or business, a seventh does so indirectly (through the power to create and maintain a postal system and all necessary roads), while two more are purely administrative, leaving only four powers directly concerning the use of force (military powers), and only one (one of the two administrative clauses) concerning such indirectly (by giving Congress power to legislate the enforcement of its laws, hence authorizing the legislation of, for example, a police force). Thus, by count, the enumerated powers of Congress are more concerned with government regulation of business than any other function of government.

But what about “excessive” regulations? Do we really need hundreds of thousands of pages of fastidious government regulations? WTF is up with that anyway? Are bill drafters just babbling lunatics? Is Congress high? Is there some conspiracy afoot? Is it all just the administrative emesis of lefty control freaks? Why are just as many of these monstrous bills written and voted up by conservative nutjobs? Lefty mind control? Do liberals all just have the lamest X-men mutant power, the ability to mind control conservatives only when it will result in creating more regulations? (But when it’s war or gay rights, up goes the supernatural Republican mind block?) What are all these regulations and why on earth does Congress keep voting for them? Why, in fact, so damn many of them?

Ironically, the popular myth that government regulations hinder business entails that Congress is consistently anti-business, because all regulations exist only because Congress consistently enacts them. Congress. The same Congress that everyone knows is in the pocket of big business. So business interests pay Congress to constantly, persistently, relentlessly get in their way? That doesn’t make a lot of sense. Whenever you see a contradiction in your religious dogma, you should start questioning whether maybe your dogma is full of shit. So let’s take an abstract tour of government regulations, categorized by how and why they come to be. You can confirm all the following generalizations by just picking up any enacted law and just reading it, front to back (the more so if you follow the insider reporting on how the bill got drafted and amended, and/or compare a bill as first proposed, with what actually gets passed)…

1. Most government regulations are in fact corporate-lobby, bought-and-paid-for loopholes, designed to help business. Mainly to help it get away with things. Take, for example, the Dodd-Frank Wall Street Reform and Consumer Protection Act. That started as just a couple of pages. It ended up thousands of pages long. WTF? Well, most of the final draft of any banking regulations bill (like this one) consists of rules the regulated companies asked for, basically hundreds and hundreds of pages of loopholes and exceptions. These regulations are not in the way of business, but are the very things the businesses wanted so they would be less restricted! (By the actual regulations, which themselves might span only a page or two.)

Most of these rules I agree we could get rid of. For example, the original Dodd-Frank bill was short and simple and obviously the correct law to have, but it was bloated by hundreds of pages of exceptions for various companies’ activities (again, exceptions the companies asked for). But you can’t say this government bloat is hurting business, when in fact it’s business that is asking for them and getting them voted in. At most you might say that often these vast reams of pro-business regs are hurting small business, by rigging the system in favor of big business. And sometimes that’s true. Although not always…sometimes regulations that are needed, don’t hurt small businesses at all, or even help them, and sometimes they do favor big business over small, but only as an inevitable byproduct: example, car safety regulations favor Toyota over some random dude with a garage and a dream to make cars out of cardboard boxes, rubber bands, and hydrazine thrusters. But let’s be honest, we don’t want that dude’s cars on the road with us. That’s right up there with smashing us over the head with a badly built house, only this time we’re tossing giant flammable exploding bullets down a busy highway, which damn right ought to be illegal. But if a reg is needlessly hurting small business just to give an unfair advantage to big business, then why not get rid of it? I agree. We’d be better off without it. But that’s because it would make the market more fair, and thus more free, which actually will hurt some businesses–the very businesses that, by means of these very regs, are otherwise profiting from an unfair market. Republicans play on this irony all the time, so as to frame any attempt to eliminate unfair regs as itself “unfair” (yeah, unfair to the cheaters). So they defend bad regs that hurt business in the guise of helping business, all the while claiming that government regulation always hurts business. Nice. Anyone who falls for that two-step is an idiot. (Hello, Tea Party.)

The point is, most shit regs are written by Republicans (and Big Business Democrats), not lefty control freaks. Know your enemy.

2. Once you delete all those regs (all the loophole regs, the good ones we ought to keep, and the bad ones we ought to kill), you have two kinds left. The first of those are regs that again help business by allowing them to continue doing business without harming citizens. For example: a company manufactures a product the byproduct of which poisons children through the air and ground water. Protecting children (American citizens) from poisoners is the fundamental business of government. Even a libertarian cannot claim it is not the valid function of government to stop people poisoning kids. So a government says “you can’t make that product anymore because it’s poisoning kids,” and the company says “but we need to make that product to make a living,” so the government says, “if you can come up with a way to do that without poisoning kids, we’ll amend the law to let you,” so the company comes back with an idea for a filtration and disposal system that will keep the byproduct from poisoning kids, and the government says “okay, we’ll write into the law that if you install and use that system, without any cheating, then you can make that poison, because then it won’t be killing kids.” To then say that the regulation requiring companies to use that expensive filtration system is “hurting business” is simply perverse. The regulation exists to help business. It exists for the express purpose of allowing that business to continue. It is not there to get in the way of business; it’s there to get in the way of poisoning kids.

None of these regulations can be done without. Some can be improved, perhaps. But not eliminated. That there are so many of them is simply an inevitable byproduct of business itself, which comes up with so many ways to do dangerous things without hurting citizens, in an enormously complex economy that produces millions of materials, chemicals, and products. The vast number of these regs thus reflects business ingenuity. In fact, their number indicates how innovative and healthy our economy is. Show me a nation with a paltry regulatory law and I’ll show you a third world country (or a tax haven with no manufacturing base). In other words, these regs exist to make enterprises possible that otherwise would not be. They are thus good for business, and the economy as a whole. It’s just like the instruction manual for that navy ship: our economy is so vast and complex, you can’t possibly not have hundreds of thousands of pages of regs ensuring that businesses can operate without hurting or killing people or destroying their property (or liberty: many regs exist not just to protect us from, e.g., getting poisoned, but from having our privacy invaded or money stolen or speech abridged). Because there are so many things we make and do, thus so many ways to hurt people or rob or defraud them or infringe on their liberty, and thus so many rules we have to write to keep that shit in check.

3. That leaves one other kind of regulation. And that’s what we often call “bureaucracy”: all the rules and paperwork that seem to burden government and citizens with so much bullshit. These can be improved–reduced, simplified, smartened up (as Al  Gore was doing during the Clinton administration, and Obama is trying to do) with paperwork reduction acts, rules streamlining, getting rid of badly written rules, etc.; all of which is the process of making government better that should be Congress’s job. [Insert your own funny joke here about Congress being a bunch of do-nothing ass-clowns.] But in fact most of these regs are inevitable and required, due to an inevitable process of voters insisting on them. Which makes it perverse for voters to complain about them–since they asked for them in the first place, and if they were taken away they would ask for them again!

The process goes like this. First some task needs doing (e.g. a police force run); someone is put in charge of it and given leeway to run it; they start abusing their leeway (graft, nepotism, embezzlement, creating special privileges for themselves or their family and friends, persecuting enemies) or screwing up (due to ignorance, incompetence, laziness, negligence, or mere human fallibility and limitations that not even the best of any men or women could overcome because they can’t know everything or oversee everything); voters complain; regulations are then established to prevent it (e.g. fairness in hiring; rules governing accounting procedures to police against embezzlement and ensure accountability; rules limiting what boundaries can’t be crossed, ensuring decisions are accountably and fairly made; and rules codifying past knowledge and experience to insure against ignorance or oversight, e.g. ensuring past mistakes aren’t repeated, or anticipated mistakes never made; rules making decisions and information easier to access and oversee, etc.). This gets enormously complicated, but it’s what the voters want, because without it, officials have too much power and end up misusing it. And when these rules are removed, often voters complain when the inevitable happens, and insist the rules be put back. So you apparently can’t do without them.

The reality is that most voters don’t understand what is actually required to enact their will. Thus they don’t grasp the fact that preventing a particular abuse (e.g. police officers fixing tickets for friends, or taking bribes to do so) requires enacting a complex system of rules and paperwork to record what happens so it can be policed (and prosecuted, if abuses are exposed by them, as the documentation is then the evidence needed, and often the means by which the abuse is discovered in the first place, so without that, you can’t stop it). Calling this “bloat” or “excessive government regulation” or “fattened bureaucracy” merely because of it’s complexity is simply ignorant. They might be excessive, but that can’t be decided merely by looking at how numerous and complex they are. They have to be numerous and complex. The only question is whether they can be better written. But writing them better won’t reduce the number of them. We all need to grasp that reality and learn to live with it.

So. 1, 2, 3. Count up all those, and there just aren’t many regs left to bitch about. So whenever you complain about there being too many rules and regulations, ask yourself which rules and regulations you mean. Do you really know they are excessive? Are you informed enough to know what actually happens when they are taken away? Do you even know why they were enacted in the first place, what abuses they were devised to stop? Do they really hurt business, or were they in fact created by business, or to make business possible? Do they really worsen government, or do they in fact make government more efficient, effective, fair, accountable, and reliable? Don’t lose yourself in your political party’s mythology, which is mostly just made-up stories about non-existent regulations ruining the imaginary lives of Joe the honest plumber, or falsified tales about what a real regulation does, that in fact distorts the reality of what that reg’s effects actually are, and completely ignores the history of what horrible shit went on before that reg existed. Actually find out the facts first.

Do that, and I think you’ll find reality is far more complicated than your political faith could ever sensibly account for. Some rules and regs need to be eliminated. Some need to be fixed or improved. But most can’t. And more may even be needed than we already have. Unless, of course, you want the United States to look and operate exactly like a third world country.


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  1. 1

    Unless, of course, you want the United States to look and operate exactly like a third world country.

    Or a tax haven with no manufacturing base.

    1. 1.1
      Richard Carrier

      No. Tax havens have plenty of regs (lots of bureaucracy, plenty of protections of citizens, and ample regulation of commerce: e.g. Cayman Islands). The only thing that distinguishes tax havens is that they don’t have regs for industries they don’t have. Which, that being millions of industries, keeps their reg books only relatively smaller.

  2. 2

    “Pinny anny?”

    I had always thought it was “penny ante.”

    1. 2.1
      Richard Carrier

      And it’s lot of, not lotta. And buddies, not buds. Etc. Just being colloquial (and spelling like it would sound, as if you were hearing this rather than reading it).

      But good note: it’s well worth pointing out (as history geeks like us all love this sort of thing) that the actual term is penny ante, which comes from poker, designating a game in which you ante up with a penny (and thus subsequently the highest bet is always limited to a penny). Which implies paltry, small-time insignificance.

  3. 3

    I think that proper Latin would be “Sic Semper Regulationibus” (dative case; “Thus Always to Regulations”), in analogy with “Sic Semper Tyrannis” (“Thus Always to Tyrants”).

    There’s a subculture that features businesses that defy government regulation: organized crime. Although it can seem very thrilling, it can be VERY dangerous. If one’s in that kind of business, one can’t sue someone for allegedly not delivering or allegedly diluting some batch of illegal drugs or something like that.

    Related to this, the US Food and Drug Administration and similar agencies were founded for a reason: because of the numerous quack medicines of a century ago. Like Radithor, dissolved radium salts that were advertised as having curative properties. However, radium is a chemical analog of calcium, and guess where it would get deposited. Bones. It gave some people bone cancer.

    Regulations can be beneficial for showing that one has followed some recognized safety procedures. It’s like establishing that one has followed the rules of the road when one has gotten into a car accident.

    1. 3.1
      Richard Carrier

      Except it’s not about doing something to them, it’s about how they always go (or come to be, or work, or whatnot). Therefore, it’s “Thus always regulations [are/come/happen/go/etc.].” Hence the nominative case. I’m not stabbing the regulations. :-) But nice Latin geekery. Love it.

      As to the rest, yes, organized crime is an example of regulationless government. In fact, when you look at the way markets and governments work in some third world communities, it’s very similar to the way organized crime works, complete with its characteristic corruption, inequity, and violence (and the Roman Empire has been similarly compared, by an anthropologist: cf. Bruce Malina’s The Social Gospel of Jesus).

      And you’re right about the USDA (etc.). It’s also in the same vein as standardizing weights and measures. One of the most important elements required for a free market to work is information transparency. You have to have correct information, and the same information, to be able to act rationally in a free market so as to ensure the market functions to regulate itself. If one party to a contract is concealing information or lying, inequities result that prevent free market processes from becoming self-regulating, because agents in that market cannot act as rational agents are expected to. The market then doesn’t work…except in favor of the people with access to the information, but that accumulates inequities of wealth, power, and influence that is the very thing critics of free markets rightly complain about–which is not a flaw in free market capitalism itself, but in free markets with information disparity.

      Thus if you believe free market capitalism works to the general good, you are wrong, unless you also believe the government should ensure the elimination of information disparity (and as it happens, an education system is essential to that task). Because only then can free market capitalism work to the general good. This is because individuals in any system cannot eliminate information disparity. They lack the knowledge, expertise, access, resources, and power. For example, do you know how to determine if a product contains radium? Indeed, there are people who don’t even know that radium is poisonous. No one can know everything. Thus we need experts to act on our behalf. And we need to have the power to keep those experts neutral and honest (whether we exercise that power or not, we at least need to have it, before we can exercise it, if ever we clue ourselves in that we should). Hence the USDA. Which is overseen by people we elect to represent us in that very task. Those reps might be cheating us (by taking bribes from big business), but that’s a problem we have to solve all around (even in a perfect libertarian world, since someone has to buy the stuff that police use to do their jobs, and appoint people to run the police, and write the laws the police enforce, and the rules the police follow, so corruption will always be a problem we must aim to eliminate, thus “a tendency to corruption” is not a valid objection to regulating commerce, any more than it is a valid objection to all government whatever, which it isn’t; and, of course, giving people poison labeled as medicine is a policeable crime even on the strictest libertarianism).

  4. 4
    F [is for failure to emerge]

    Oh, hell yes. Exactly. /117, QFT. And I thought pinny anny was highly amusing.

  5. 5
    Jim Baerg

    Does anyone have some ideas on how to at least reduce the bias of legislatures toward bloating regulations with zillions of exceptions that favour the companies rich enough to afford lobbyists?

  6. 6

    An initial step would be campaign finance reform; if politicians weren’t directly beholden to moneyed interests for their war chests, there’d be less incentive to write loopholes into the laws for them.

    1. 6.1
      Richard Carrier

      Dalillama: An initial step would be campaign finance reform; if politicians weren’t directly beholden to moneyed interests for their war chests, there’d be less incentive to write loopholes into the laws for them.

      In Sense and Goodness without God (VII.4.3, pp. 384-85) I argue we should elect the House by a kind of lottery, bypassing electioneering altogether (I say all legislatures there, but I could imagine allowing that the Senate can remain elected, as it represents the states and not the people directly, and no law can pass without both houses approving, except treaties I think). There was a famous conservative (I can’t recall which) who once said he’d rather be governed by the first one hundred names in the phonebook than the whole faculty of Harvard (he should have said Yale, as most politicians actually come from there). I don’t quite agree (I think you do need at least a college degree to be competent to represent a population), but he remains correct: we’d be even better off with randomly selected college grads, but if my only choice were randomly selected citizens (of any kind, provided they met the requirements for office already set forth in the Constitution, e.g. right age; no felons; etc.) and the faculty of Harvard, I would indeed chose the random lot. Not because I think Harvard professors are all idiots, but because they don’t represent the nation and are out of touch with most of it, whereas a random sample would by definition statistically represent the actual people (e.g. roughly half would be women). And they could always consult with the faculty of Harvard (or of anywhere) as much as they please.

  7. 7

    That would also work, but it would take a much greater change to the existing election laws, including a Constitutional amendment (Article 1, sections 4-5), so I can’t really call it a first step, per se. I suspect we’d need to spend quite a bit of time on electoral reform before we were able to generate enough political will for a change that big.

    1. 7.1
      Richard Carrier

      Dalillama: I suspect we’d need to spend quite a bit of time on electoral reform before we were able to generate enough political will for a change that big.

      But as we’ve just seen, there is no significant electoral reform we could ever enact without a constitutional amendment (the Supreme Court has essentially made this unarguably clear). So if we have to do that anyway…

  8. 8

    Exactly! My personal response to folks claiming that regulations are harming business is to request details. Precisely WHAT regulation is harming WHICH business in WHAT way? No one has ever really come up with one.

    Save one thing – the “Nanny State” regulations/laws. Which by definition, just piss some people off. That is, until their grandson falls off his bike and gets a brain injury, then that “kids under 18 must wear helmets when riding a bike” just doesn’t seem so bad anymore.

  9. 9

    Even a libertarian cannot claim it is not the valid function of government to stop people poisoning kids.

    I’ve heard some libertarian nutheads say that, in a totally free market, any company that made stuff which poisoned kids would either be driven out of business or sued; hence there would be no companies poisoning kids. In fact, some of the more rabid lunatics would decry such government intervention as wicked and immoral because it is “initiating force” against a private company.

    *sound of 1000 heads simultaneously exploding*

    1. 9.1
      Richard Carrier

      True. That kind of fantasy-driven, mythology-loving, anti-empirical lunacy does exist. But I am only being fair to the non lunatics by not tarring the whole libertarian movement and ideology with what the irrational crazies say.

      In consistent libertarianism, the government’s one legitimate job is to prevent the unauthorized use of force against others. Poisoning someone’s kids is an unauthorized use of force.

      But I have indeed tangled with the anarcho-libertarians who deny even that principle, and insist instead that it’s not even legitimate for governments to exist to regulate the use of force. That was the target of my entire Factual Politics series.

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