Inventing The Scales

Perhaps the only useful part of Congress's inability to confirm a new head of the Office of Information and Regulatory Affairs is that the vacancy is prompting a series of discussions about how regulations ought to get made. Mark Kleinman has an interesting post about the arbitrary nature of some of the key elements regulators use to measure the costs and benefits of individual rules, including the argument that relative position isn't used to calculate impact, less likely large impacts can be ignored because they're speculative, and the fact that we've simply accepted figures for certain measures, like the cost of a human life. And Ezra Klein chimes in that "There's a lot of focus in American politics on doing better things. But there's rather less attention paid to doing things better. If we change the process by which we pass laws, for instance, we might eventually arrive in a world in which we can actually pass good laws, rather than compromising them down to the point of maximum incoherence."

This strikes me as particularly important at a time when Congress is so sluggish and deadlocked that the regulatory process looks positively sleek and efficient in comparison. When I talked to the Chamber of Commerce for a story I was working on about the business community's agenda for National Journal a while back, one of the Chamber's vice presidents pointed out that the regulatory process was in some ways more difficult for them than a Democratic Congress. In Congress, there are filibusters, and holds, and the need for super-majorities. In the regulatory process, there are comment periods, and cost-benefit analysis, but there are many fewer obstacles for an administration to get what it wants. Under those circumstances, it's particularly important that good principles, rules, and processes be in place.