Academic journal article Case Western Reserve Law Review

Exploring the Relationship between Regulatory Reform in the States and State Regulatory Output

Academic journal article Case Western Reserve Law Review

Exploring the Relationship between Regulatory Reform in the States and State Regulatory Output

Article excerpt

ABSTRACT

The rhetoric surrounding regulatory reform has long been heated. Supporters talk about making regulation more efficient and regulators more accountable to the public. Opponents blame regulatory reforms for crippling the regulatory process and inhibiting the production of regulations that will protect public health. This Article uses a data set of regulations and regulatory reforms in twenty-eight states to question both of these positions. We find that reforms such as executive review of regulations, legislative review of regulations, and economic analysis have no relationship with regulatory output. Instead, political factors, particularly the control of the state legislature, are a much better predictor of the volume of regulation in a state. If a legislature passes laws that require regulations, there will be more regulations regardless of the procedural hurdles that regulatory agencies face when engaging in the regulatory process.

CONTENTS

INTRODUCTION

I. THE INTENT(S) OF REGULATORY REFORM
     A. Public Participation
     B. Legislative and Executive Review
     C. Economic Analysis
     D. Deadlines and Delay
     E. Studies of the States
II.  DATA
     A. Dependent Variable--How Many Rules?
     B. Independent Variables: Procedural Controls
     C. Independent Variables: Politics
III. ANALYSIS
     A. Administrative Procedures
     B. Executive Review
     C. Legislative Review
     D. Impact Analysis
     E. Other Procedures
     F. Political Variables
     G. Combinations of Variables
     H. Combinations of Procedures
     I. Politics and Procedures

CONCLUSION: DOES REGULATORY REFORM MATTER?

APPENDIX

INTRODUCTION

The 113th Congress has considered nearly three-dozen bills that would change the federal regulatory process. (1) The fifty states have been extremely active in passing similar bills, particularly since the onset of the Great Recession. (2) Many of these bills add requirements that agencies must follow when promulgating a regulation. These bills, often described as "regulatory reforms," are largely a response to claims that regulatory agencies are stifling the economy by promulgating too many regulations that kill jobs and hurt the economy.

But do the regulatory reforms work? What does it even mean for regulatory reforms to "work"? At the most basic level, we would expect regulatory reforms to have a substantive impact on policy decisions made by regulating agencies. By raising the cost faced by agencies to create regulations, regulatory reforms should also dampen the output of regulations. Indeed, opponents of regulatory reforms have made this argument repeatedly. (3) If these reforms perform neither of these functions, then they may serve a political purpose, ensuring that political officeholders pay attention to particular regulations that create dissatisfaction for affected constituencies. (4) Finally, reforms may play a symbolic role imbuing the regulatory process with values such as public participation, democratic oversight, or economic efficiency.

Determining which of these roles are played by regulatory reforms is increasingly important. As legislators and executives enact more and more regulatory reforms, they justify them by arguing that they have a substantive impact on regulations or that they will reduce regulatory volume. (5) This rhetoric is often particularly heated regarding environmental regulations. Once put into place, new regulatory procedures are rarely repealed. If some regulatory reforms are working to curb regulation and others are not, then this will inform the debate over new reforms. If they are instead playing only a political and/or symbolic role, then this should raise questions about their continual appeal.

In this article, we use a unique data set that contains information on the volume of regulation and the varying levels of regulatory procedures in twenty-eight states. The states have been underutilized in the empirical examination of the regulatory process. …

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