Notice & Comment

Better Procedures and Regulations Are Not an Answer to the Loss of Trust in Government, by William Funk

*This is the fourth post in a symposium on William Araiza’s Rebuilding Expertise: Creating Effective and Trustworthy Regulation in an Age of Doubt. All posts from this symposium can be found here.

In Rebuilding Expertise, Professor Araiza has created a comprehensive analysis of the problems faced by federal regulatory agencies and has provided recommendations to improve federal rulemaking. The depth and quality of his analysis and the common sense recommendations are difficult to find fault with. I have a few minor quibbles. I was surprised that he did not address regulatory negotiation in some detail, because it seems to reflect many of his recommendations in terms of involving the people who will be subject to and benefitted by regulation. In addition, I think more could have been made of using “nudges” and tax and monetary incentives as means of achieving regulatory goals, rather than through command-and-control regulations. Finally, I think Professor Araiza is too critical of agency use of consultants and contractors. Much of the “expertise” attributed to federal agencies in fact often resides in the consultants and contractors that an agency uses. The Department of Energy cannot have experts in each of the appliances regulated by its appliance efficiency program, nor can the Consumer Product Safety Commission have experts in all the consumer products whose safety it must address. EPA’s campus in North Carolina’s Research Triangle capitalizes on the the expertise available in the research universities there. Agency expertise can indeed reside in the ability to use and supervise consultants and contractors. Not that Professor Araiza condemns the use of contractors. As he does with his other analyses and recommendations regarding problems faced by agency regulators, he tries to achieve a balance between the pros and cons, recognizing the value and need for some contractors. Only here, I think, he errs somewhat in where he finds the balance.       

However, a better title for his book might have been Improving Government Regulation, rather than Rebuilding Expertise. Why? Two reasons. First, the title suggests that agencies have lost expertise, but have they? When a President demands that an agency adopt a particular regulation, the inability of the agency to succeed in adopting that regulation in a legally defensible manner is not evidence of a loss of regulatory expertise. Rather, it is evidence that such Presidential demands are often in conflict with the law. No amount of expertise can or should trump legal requirements. Indeed, the Trump administration’s response to COVID-19, which Professor Araiza characterizes as the elephant in the room, hardly suggests a lack of agency expertise. The Center for Disease Control’s guidance, even if initially tentative and uncertain in light of the novel situation, and the Food and Drug Administration’s deployment of vaccines in record time demonstrate expertise in execution. That the President through his words and actions undercut that expertise does not indicate a fault with the agencies. To paraphrase Shakespeare, the fault lies not in the agencies, but in their masters. The expertise is there; it does not need to be rebuilt, even if there is more that can be done to nurture it.  

Take another example: the Clean Power Plan overturned by the Supreme Court in West Virginia v. EPA. Whatever the merits of the Supreme Court’s opinion, the agency demonstrated substantial expertise in crafting an attack on greenhouse gas emissions from power plants in light of a statute not well designed for such an attack. It combined science with expert knowledge of the industry to devise an innovative way to curb powerplant emissions. Yet another example was the roll out of the regulations under the Affordable Care Act, a gargantuan task that resulted in timely implementation of one of the largest administrative tasks the federal government ever faced. Agency expertise was superb, even passing Supreme Court muster without any deference given to the agency in its fix of a statutory glitch. 

I recognize that Professor Araiza’s idea of “rebuilding” expertise includes the idea of limiting political influence on regulations, thereby making regulations more a product of expertise than political considerations. Nevertheless, the title may still be misleading.

The second reason why a better title would have been Improving Government Regulation relates to the book’s subtitle: Creating Effective and Trustworthy Regulation in an Age of Doubt. An overarching goal of the book involves an attempt to tie the problems faced by federal regulatory agencies to the lack of trust people have in the federal government and federal regulatory agencies in particular. The Introduction suggests that improving government regulation will aid in rebuilding the trust people have in agencies and the government. And it is trust in the federal government acting through its agencies that does indeed need rebuilding, not their expertise. Professor Araiza recognizes that the loss of trust is not solely or perhaps principally the result of flawed regulations, but I would suggest it has nothing to do with flawed regulations. 

There are at least two reasons unrelated to flawed regulations for the lack of trust in the federal government and its agencies, neither of which would be affected by any increase in the effectiveness of agency regulations. The first is the unrelenting anti-government, anti-regulation media trope that harps on job-killing, “woke,” liberty-crushing, and costly federal regulations. Industry has always railed against regulation, but outside of elements of the Republican party it generally failed to gain traction with ordinary persons. After all, regulations didn’t seem to affect them directly. But once federal regulation (or state or local regulation imposed as a result of federal regulation) started to regulate ordinary persons, the anti-regulation media found an receptive audience. Consider the reaction to public health actions to respond to COVID-19: OSHA regulations forcing workers to be vaccinated, CDC guidance for persons to be vaccinated and to wear masks. Both were viewed as Big Brother taking away your liberty. Consider the Affordable Care Act’s individual mandate. Requiring people to obtain medical insurance! Outlandish. The Second Amendment? How long has it been asserted that the government (in the hands of the Democrats at least) wants to take away your guns? And it’s true. The Democrats (or at least a majority of them) want to take away the 20 million assault rifles out there. The Clean Water Act’s 404 program, requiring a permit before someone fills a wetland subject to the Clean Water Act’s jurisdiction, is currently before the Supreme Court in a case where the Government is stopping a married couple from building a home on a small residential lot. In an area with a lot of wetlands, you can walk into a local bar and hear people complaining about the 404 Program. And then there are the federal regulations resulting in reduced water use in toilets, the elimination of ordinary incandenscent light bulbs, and perhaps the elimination of gas stoves. All of the above are probably appropriate regulations, but they are fodder for the anti-regulatory, anti-big government culture warriors. The expertise that went into these regulations – that is, the identification of a health, safety, or environmental problem and the way to address that problem – was no protection from the effect they had on trust in agencies and the federal government for large portions, if not the majority, of the public. Requiring someone to do something they don’t want to do, or not to do something they want to do, will not earn their trust, no matter how rational the requirement. You will earn their enmity.

The other reason why improving expertise and agency regulations will not rebuiild trust in the federal government is the disconnect between the laws that agencies must implement and enforce and the present political climate. That is, most of the regulatory statutes being implemented today were adopted almost a half century ago. The Clean Air Act, the Clean Water Act, the Occupational Health and Safety Act, and the Consumer Product Safety Act were all enacted in the early 1970s. Fifty years is a long time for policies to remain unchanged. Consider that fifty years before 1970: Prohibition was enacted; the federal government could not regulate child labor; racial segregation was lawful and in effect in much of the country; and the government could criminalize public appeals to oppose a war. By 1970 this had all completely changed. Today, none of those 1970 laws could be reenacted. It is not that people no longer care about clean air and water and occupational and consumer safety. Rater, the problems that created the demand for such laws have been dramatically reduced; the low hanging fruit has been harvested. Instead, these laws are now often used to address problems not conceived of at the time of their enactment, such as climate change and environmental justice concerns, without subsequent political confirmation of the need to regulate these matters. Agency expertise has tried to respond to today’s problems with yesterday’s laws, often successfully. However, absent political approval from Congress or general popular support, such regulations do not garner trust in the government or regulatory agencies. Indeed, the more successful the agencies are in crafting regulations, the more popular opposition may grow.

It may also be worthy of note that increasing transparency in agency rulemaking, one of the suggestions Professor Araiza makes, will not likely increase trust in the federal government and federal regulatory agencies. It is a familiar claim that increasing government transparency will lead people to trust their government more. It is, however, a claim without any empirical support. In fact, there is empirical support for the opposite: that increased transparency leads to distrust of government. We are all familiar with the quote popularly attributed to Bismarck that “laws are like sausages. It is best not to see them being made.” Research, however, has found the phrase originated in America from one John Godfrey Saxe (1816-1887) as “laws, like sausages, cease to inspire respect in proportion as we know how they are made.” In either iteration, the message is clear – transparency breeds disrespect, not trust, in government functions. But let’s not rely on aphorisms. Consider whether Edward Snowden’s disclosures increased trust in the intelligence community. They certainly increased transparency, and arguably provided valuable information about how our intelligence agencies work, but they did not inspire trust or respect. Less dramatically, consider the trajectory of trust in government since 1966, when the Freedom of Information Act was originally enacted. Professor Araiza in Chapter 1 describes how trust in government has plummeted over the years, although he does not connect that decline with the increase in transparency in government that has occurred over the same period. It is not surprising that increased transparency negatively affects trust. Absent transparency, government (because it is staffed by humans) voluntarily only reports the good news. As soon, as transparency is mandated, however, the bad news starts to come out. And the media is successful not by spoonfeeding government handouts but by disclosing government secrets and lies. This may result in better government, but not in greater trust in government. 

Some transparency may not even result in better government. Assessments of the success of the Governmnent in the Sunshine Act, requiring mult-member federal agencies to decide matters in public meetings, almost uniformly find the Act counterproductive in improving government regulation. Accordingly, it is not surprising that in recent years the most trusted and respected branch of government has been the judiciary, whose decisions are made in secret, behind closed doors. Indeed, the leak of the Dobbs opinion draft, someone’s idea of increasing transparency in the Court, negatively affected trust and respect for the Court independent of the merits of the opinion. 

To sum up, Professor Araiza’s analysis and recommendations are noteworthy and valuable as steps toward better regulatory proceedures and regulations. However, better regulations are not the answer to or even relevant to the lack of trust in government or in federal agencies. That is not an argument against following Professor Araiza’s recommendations, but it is a sobering realization of the state we are in where much increased (and perhaps necessary) regulation antagonizes the populace, where the media profits by bashing government, and where transparency focuses on the problems of governance, not its successes. The means by which to attack these problems lies in different directions.

William Funk is the Lewis & Clark Distinguished Professor of Law Emeritus at the Lewis & Clark Law School.

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