Sen. Warner's Regulation Proposal Is Wrong

Sen. Mark Warner of VA has an op-ed in today's Post on regulation.  Specifically, he's proposing legislation to require agencies to kill a regulation for each new regulation they write, alleging: " our current regulatory framework actually favors those federal agencies that consistently churn out new red tape. In this town, expanded regulatory authority typically is rewarded with additional resources and a higher bureaucratic profile, and there is no process or incentive for an agency to eliminate or clean up old regulations."

Although the regulations I wrote for ASCS/FSA were mostly not the sort of regulations Sen. Warner has in mind, iI've multiple problems with it

• A nitpicky problem is one of definition: what is a regulation?  Is it a section of the Code of Federal Regulations or a part? Does it relate to a specific law, or perhaps a title of a law, remembering that many "laws" as passed actually contain multiple "laws", particularly in the case of such legislation as the farm bill? How about a regulation for a yearly program: if the 2007 direct payment program is different than the 2009 direct payment program, is that two regulations or one? Whatever definition is used, a sufficiently ingenious reg writer can work around it, by judiciously combining and splitting documents, or including the new regulatory provision in a revision of the old regulation.
• "Old regulations" don't necessarily mean obsolete regulations.  AMS has probably not changed many of its regulations defining commodities for many years, but those regulations don't need changing or dropping just because they're old.
• "Obsolete regulations" need not be oppressive regulations.  For example, suppose the government regulates the making of buggy whips. Well, IMHO there's few buggy whip makers around to be adversely affected by the obsolete regulation, and therefore little economic gain to using scarce resources to do away with them.
• It fails to consider the Congressional role in rulemaking.  For example,  a recent NYTimes article described the regulatory work involved in implemented Obama's healthcare and financial regulation packages; I believe Sen. Warner supported both.  What obsolete regulations would he have Treasury and HHS drop?  When Congress creates some programs and sticks them in the farm bill, without killing old programs, what regulations is FSA supposed to kill?
• It's a de novo proposal, by which I mean it's made without any recognition of past efforts in this direction.  (Sen. Warner's too young to remember the Carter administration and its love of sunset provisions.)  Someone fed Sen. Warner the OECD report on regulations and he saw a chance to make his name based on adopting it here.  I would be more impressed if Sen. Warner and his staff had looked at the existing inventories of federal program and rulemaking activities,  consulted with the people in the Obama administration who are working in the area of rulemaking, thought about public involvement, talked to GAO which did a report last year, and made some considered proposals.
• [Updated: The proposal requires more work for federal regulation writers, without providing any funding.  Therefore we need to consider what the writers won't be doing if they carry out Sen. Warner's proposal: ignoring public input on regulations or taking longer to write new regulations (the GAO study already outlined how long it takes to get new things out the door). As a former businessman, Sen. Warner should realize there's no such thing as a free lunch.

Note: Sen. Warner is one of my senators, I voted for him, and I plan to vote for him in 2012.  But  he should take this back to the draft stage.]