As my colleague Richard Morrison wrote yesterday, this year marks the 25th anniversary of Wayne Crews’ first “10,000 Commandments” report, published in 1993 by the Citizens for a Sound Economy Foundation (the brand new 2018 edition is here). A lot has happened since then:
- Since 1993, federal agencies have issued 101,380 new regulations.
- The Code of Federal Regulations gained more than 50,000 pages, and now stands at 186,374 pages, spread across 242 volumes.
- From 1997-2017, federal agencies issued 16,275 new regulations that affect small businesses.
- A 1992 Regulatory Information Service Center study estimated the total regulatory burden at $543 billion dollars ($976 billion in 2017 dollars). 10,000 Commandments’ estimate for 2017 is $1.9 trillion.
If there is a lesson to be learned from this astounding growth, it is that the rulemaking process itself needs new rules. Under the current system, agencies are not supposed to regulate willy-nilly; they have to act according to congressional legislation. But it doesn’t work that way in practice. Current procedures have large loopholes that allow agencies to dodge these legal requirements. Many controversial rules, from net neutrality to power plants, are either issued unilaterally via the president’s pen and phone, or take the form of regulatory “dark matter”: guidance documents, Federal Register notices, sue-and-settle court cases, and more.
As the old saying goes, if you want better results, you need better rules of the game. For the regulatory state, this means more transparency and more accountability to the other two branches of government, and to the public.
There have been some heartening developments on this front recently. Since taking office, President Trump has issued a number of executive orders to temper such rapid regulatory growth. Tactics range from a “one-in-two-out” policy for new rules to capping net new regulatory costs at zero. The trouble is that the next president can undo all of these reforms with the stroke of a pen. Congress needs to make them permanent with legislation.
So far, they have been unwilling. A half a dozen or so reform bills have passed the House of Representatives. But the Senate has ignored them, despite a president from the same party who appears willing to sign them into law. Congress has revived the Congressional Review Act to get rid of more than a dozen onerous regulations—out of several thousand candidates. While it is nice to get rid of this or that dysfunctional rule, true reform has to work on the rulemaking process itself. Victories have been few on that front.
With a possible party change in one or both chambers of Congress this November, the time to pass structural reform legislation might be now or never. If the Senate says “never,” then job number one for reformers is to keep the ideas alive. Congress should continue to reintroduce bills such as the REINS Act and the Regulatory Improvement Act every session until political winds move in a more favorable direction, and they can finally pass both chambers and the president’s desk.
Wayne has ably documented the regulatory state for twenty-five years and running. But what will the next twenty-five years of “10,000 Commandments” look like? From here, the future looks precarious, but there is reason to be hopeful about reducing Washington’s regulatory bootprint on consumer choice and the economy. With persistence, good ideas, and a little luck, the 2043 edition “10,000 Commandments” will be much sunnier than this year’s.