Monday, March 28, 2016

A New Approach to Business Regulaton

As a liberal Democrat, I favor regulation. But I also think business has a point when it complains about inappropriate or unreasonable regulation. Indeed, if the Democrats would better publicize the attention they pay to this complaint, they might do better at the polls. What never seems to get discussed, though, is WHY so much regulation generates complaint. Let me suggest a reason that is not ideological:
Our regulatory agencies, legally required to ensure fair comment and to provide credible studies of environmental and economic impact, now enact regulations only after a grueling and lengthy period of gestation. Once the regulation becomes final, nobody wants to go through that horrific process to make "minor" adjustments. As a result, as encumberments of the rule making process have proliferated, regulations have become rigid and too often ill-suited to a rapidly changing business environment.
There does exist a solution: the common law. The common law is a regulatory process based on brief, general regulations like the antitrust laws that inherently provides flexibility, in that judges can and do take account of changing circumstances and theories, and allow for rational and fair exceptions. Not every regulation would be improved by such a process, but many probably would be.

In this approach, agencies promulgating regulations would be allowed to write short, simple rules that set out the general idea and purpose, implementing them through case by case applications.  Business would benefit in several ways. First, the thicket of regulation would be sharply cut back. Second, the regulation could be tailored to the precise circumstances of the business in question. Third, as a body of rulings developed, caselaw would provide, based on practical experience, the details that are necessary to guide business decisions. Fourth, this approach would generate far more caselaw than the present approach, providing a much richer, more complete set of guidelines. Two other possible benefits: first, this approach would greatly simplify regulation in general; second, it might also greatly reduce the requirements for providing information, while requiring the relevant information to be provided in particular enforcement actions or for particular regulatory informational purposes. 

Sunday, March 27, 2016

A Bleak Scenario

The first play George Bernard Shaw wrote, in 1892, was Widower's Houses. It sets out, with great clarity, the trap that ensnares everyone who lives in a large society (more than a few hundred souls) that does not provide a public safety net of some sort for people who cannot make an adequate living. In the play, the rich landlord of a row of execrable slum houses seeks to marry his spoiled daughter to a member of the gentry. All proceeds according to plan until the young gentleman learns that the girl's money comes from screwing rents out of the tenants. He insists that they live on his relatively meager funds alone. It transpires, however, that his funds are the interest on loans being repaid by those same rents. And as the prospective father-in-law points out, if capitalists like him don't provide slum housing, the tenants would go homeless. But if they try to fix the housing up, the tenants destroy the improvements. Consequently, everyone--tenants, landlord, lender--is trapped in a system. And all the moralizing--the landlord is greedy, the tenants are stupid and lazy, the mortgage holder is callous, etc.--is about the people trapped in the system.

What Shaw leaves unsaid, but is being said by Bernie Sanders, is that the system needs to change. In a rich society like ours, or like England at the time Shaw wrote, there is enough wealth to provide a social safety net for the worst off, so that a systemic trap need not arise.

But to get that wealth used in such a way requires a major change in the allocation of society's wealth. In the century or so since Shaw wrote, there have been two such changes. The first, consisting of Progressive, New Deal, and Great Society programs in the US, amounted to substantial reallocations of society's wealth, and resulted in tremendous economic growth through the 1970s. The second, the Reagan Revolution and the period of Republican domination of the US political process that followed, reallocated society's wealth in the other direction, back to the rich and privileged, and with the George W. Bush years and the Great Recession that capped Bush's efforts, resulted in a large economic decline.

The Republicans seeking the Presidency propose to continue the redistribution of social wealth to the rich and the privileged, although not in so many words. The Democrats both seek to reverse the direction of redistribution, but in very different ways. Bernie argues for a revolutionary leap; a change in one swoop of legislation. Hillary argues for a pragmatic program of change, necessarily gradual in nature. In World War II terms, Bernie wants to end the war with an atomic bomb; Hillary by fighting island to island until victory finally comes.

The trouble, of course, is that neither has the firepower. Bernie has no atomic bomb, just proposals. Hillary cannot guarantee any wins either; most likely, she would face the same total obstruction Obama has faced since 2010, and since even a Presidential victory and the winning of a Senate majority would not give the Democrats control of the House, the funding for any of her programs, much less Bernie's, would be up to the intransigent Republicans.

Something will change this bleak scenario, but as I write today, I don't know what.