This Week in Ridiculous Regulations

A massive container ship turned sideways and blocked the Suez canal, halting roughly $10 billion worth of international trade per day, or about $400 million per hour. Trade protectionists in both parties had better be celebrating this catastrophe, or else perhaps they are not as consistent in their beliefs as they say they are. Two regulatory reform bills were introduced in Congress recently, the USA Act, which would cut funding to agencies not authorized by Congress, and the Pandemic Preparedness, Response, and Recovery Act, which would create an independent regulatory review commission similar to what CEI scholars have been advocating for years. Meanwhile, agencies issued new rules ranging from radio abuse to the Tariff of Tolls.

On to the data:

  • Agencies issued 49 final regulations last week, after 45 the previous week.
  • That’s the equivalent of a new regulation every three hours and 44 minutes.
  • With 748 final regulations so far in 2021, agencies are on pace to issue 3,281 final regulations this year. 2020’s total was 3,327 final regulations.
  • Agencies issued 50 proposed regulations in the Federal Register last week, after 39 the previous week.
  • With 487 proposed regulations so far in 2021, agencies are on pace to issue 2,136 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
  • Agencies published 328 notices last week, after 436 notices the previous week.
  • With 5,013 notices so far in 2021, agencies are on pace to issue 21,987 notices this year. 2020’s total was 22,480.
  • Last week, 883 new pages were added to the Federal Register in a three-day week, after 844 pages the previous week.
  • The average Federal Register issue this year contains 286 pages.
  • With 16,281 pages so far, the 2021 Federal Register is on pace for 71,408 pages in 2021. The 2020 total was 87,352 pages. The all-time record adjusted page count (subtracting skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. There are two such rules so far in 2021, none from the last week. Agencies published five economically significant rules in 2020, and four in 2019.
  • The running cost tally for 2021’s economically significant rules ranges from net savings of $100.7 million to net costs of $362.5 million. The 2020 figure ranges from net savings of between $2.04 billion and $5.69 billion, mostly from estimated savings on federal spending. The exact numbers depend on discount rates and other assumptions.
  • Agencies have published 12 final rules meeting the broader definition of “significant” in 2020, with two in the last week. This is on pace for 53 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 130 new rules affect small businesses. Two are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

Putting a Price on Conspiracy Theories, Revisited

Conspiracy theories are back in the news, so it’s a good time to revisit my recent Fortune article about putting prices on conspiracy theories. My argument is that irrationality is the same as any consumer good, such as cars or televisions. When the price of something is low, people consume a lot of it. If the price goes up, they consume less. If you want fewer conspiracy theories, then put a price on them in line with the harm they cause. So far, this theory is holding up well.

Two recent news items show why. First is a development regarding “Release the Kraken” lawyer Sidney Powell. She claimed that the 2020 election was stolen, and that Dominion voting machines used in the 2020 election had design input from former Venezuelan dictator Hugo Chavez, who died in 2013. Her claims were dismissed from several election-related court cases for lack of evidence.

In December, Dominion Voting Systems put a price on Powell’s irrationality when it filed a $1.3 billion defamation lawsuit against her. Powell’s behavior immediately changed. This week, her attorneys said in a court filing in the case that “No reasonable person would conclude that the statements were truly statements of fact.”

That is remarkable, and likely means the end of Powell’s legal career, even if the case is dismissed.

Second, Fox News is now seeing a price increase for its conspiracy-spreading. This week, Dominion sued Fox News for $1.6 billion for defamation. Smartmatic, another voting machine maker, in February sued Fox News, three of its anchors, Powell, and Rudy Giuliani for $2.7 billion. Lou Dobbs, one of the Fox anchors named in that suit, had his show canceled in February, and is no longer making false election claims on air.

These are all normal responses to an increase in price. While media coverage will likely always remain sensationalistic and threat-based for reasons I’ll explore another time, this is one case where a little bit of ECON 101-style price theory can make the news more trustworthy. Or more to the point, make it less harmful.

My original Fortune article is here.

CEI Commends Sen. Lankford for Introducing Pandemic Preparedness, Response, and Recovery Act

This press release was originally posted on cei.org.

On Thursday, Senator James Lankford (R-OK) introduced the Pandemic Preparedness, Response, and Recovery Act. The bill would establish an independent commission to identify regulations harming the COVID-19 response, and compile a package for Congress to vote on.

CEI Senior Fellow Ryan Young said:

“The American economy is a lot different than it was a year ago. We are still adapting to the challenges of COVID recovery, and making the country resilient against whatever the next threat might be. Part of that effort needs to include trimming the 185,000-page Code of Federal Regulations. Much of that code is out of date, was hampering the virus response, and will slow the economic recovery going forward.

“An independent commission like the one in the PPRRA is an effective way to go through all those rules and figure out which ones are worth keeping, and which ones the country is better off without. This is not a red-team/blue-team issue. It is a common sense issue, with a bipartisan heritage going back to the successful BRAC commissions of the 1990s that saved billions of dollars in military spending. Congress and President Biden should jointly pursue this bill or something like it.”

CEI Vice President for Policy Wayne Crews said:

“At a time when the administration is passing trillions of dollars of spending in an attempt to jumpstart the economy, powerful deregulatory stimulus, that is, easing or removing unnecessary rules and regulations can make our economy more resilient.

“It is up to Congress has to reassert its primary legislative role and act to reduce regulation, as this juncture ideally can do that via a bipartisan ‘regulatory improvement commission,’ an idea is rooted in bipartisan discussions stretching back over several Congresses.

“The Pandemic Preparedness, Response, and Recovery Act is a logical, sensible, fair and humane approach to dealing with crisis. Under the Act, a bipartisan commission would prepare recommendations for regulatory streamlining, and those would be improved upon by public notice and comment. The resultant report would be issued to Congress, which would have the ability to say yes or no to this new vehicle uniquely expressing an aspect of the will of the people that too often gets neglected. While the regulatory code grows with little relief, the Pandemic Preparedness, Response, and Recovery Act provides a way of disciplining it for the public good, and health.”

Read more:

CEI Book Forum with Johan Norberg and Patrick Moore

Earlier today, CEI hosted a double book forum featuring Johan Norberg, author of Open: The Story of Human Progress, and Greenpeace co-founder Patrick Moore.

Video of the event is on YouTube here.

I also received a pleasant surprise around the 31:00 mark when Norberg, whose work I’ve long admired, quoted favorably from my recent review of Open.

Monopoly Is Not the Same as Big

Ball State University economist Steve Horwitz posted to YouTube an excellent clarification/gentle rant about the difference between having a monopoly and being big. Though aimed at one his undergraduate classes in which many students were making repeated slips, it is a good reminder for just about everyone. This is what good teaching looks like.

The seven-minute video is here. It is even shorter than that if, as I often do, you play the video at 1.5x speed or so.

Restoring Separation of Powers and Improving Resilience with the USA Act

Separation of powers is a core principle of American government. But things haven’t gone quite as planned. Congress, the first branch, has increasingly taken a back seat to the second branch, headed by the president. This is not a partisan problem, but a systemic one.

The Framers designed a system of checks and balances in the belief that the different branches of government would compete against each other. They were mistaken. It turned out that it is parties, not branches, that compete against each other. This institution-level problem requires an institution-level fix.

To that end, Rep. Cathy McMorris Rodgers (R-WA) recently reintroduced the Unauthorized Spending Accountability (USA) Act, which seeks to rebalance a tilted scale by reasserting Congress’ power of the purse. It would reengage Congress in policy making, regardless of who runs which branch at any given time.

Only Congress has the power of the purse, yet a long list of unauthorized executive branch programs continue to operate—971 in all as of 2019, at a cost of more than $306 billion. That is roughly a quarter of discretionary federal spending.

The USA Act would automatically cut an unauthorized program’s budget to 90 percent of its previously authorized level in its first unauthorized year, and to 85 percent in the second unauthorized year. Programs would sunset altogether after a third unauthorized year.

The Trump administration displayed less respect for the limits on its power than any previous administration, including the “pen-and-phone” Obama administration. President Biden is unlikely to suddenly show a restraint that no one in his office has in decades. That bodes poorly for the COVID-19 recovery effort, which cannot be planned from Washington, let alone from one individual’s office. Congress needs to reassert itself as a check and a balance on the executive.

The USA Act would require Congress to own up to its budgeting responsibilities, while simultaneously making the executive branch more accountable. The reform is much needed.

As it stands now, there are programs currently operating that Congress has not authorized since the 95th Congress, which was in session from 1977 to 1979. In fact, when Rep. McMorris Rodgers introduced the first version of the USA Act in 2016, entire cabinet-level departments, such as the State Department, had not been congressionally authorized since 2003. The Justice Department was last authorized by Congress in 2009. Other agencies, such as the Bureau of Land Management, have operated for roughly 25 years without congressional authorization.

There is more. The USA Act’s automatic budget cuts and sunsets apply only to programs classified as discretionary spending. Roughly three quarters of federal spending is classified as mandatory, including major programs such as Social Security and Medicare. While Congress has the power to change these programs at any time, they do not require congressional reauthorization, and can continue indefinitely on autopilot.

To address mandatory spending, the USA Act would create a Spending Accountability Commission to examine mandatory spending programs and make them more accountable to Congress. It is especially crucial to make those programs more efficient and fairer, given the coming entitlement crunch. The Commission would also assist Congress in creating a schedule for sunsetting unauthorized programs.

Restoring a proper separation of powers is a tall order. The USA Act is no panacea, but it would mark an important step in crucial area of reform. With a difficult recovery from both COVID-19 and a recession ahead, the time to act is now.

Book Review: Open: The Story of Human Progress by Johan Norberg

On March 25, 2021 at noon ET, CEI is hosting a double book forum featuring Johan Norberg, the 2019 winner of CEI’s Julian L. Simon Memorial Award, and Patrick Moore, a Greenpeace cofounder and author of Fake Invisible Catastrophes and Threats of Doom. Register here, where video of the event will also be viewable afterwards.

Liberalism—in the correct sense of the word—needs fresh voices. The ideological conversation is different than it was a decade ago, and many market-liberal thinkers have not kept pace. Today’s debate is over whether society should be open or closed, not which side of the Iron Curtain was better.

This is where the Swedish economist Johan Norberg performs a valuable service. He is fighting the current battle, not the last one. His newest book, Open: The Story of Human Progress, is a superb defense of the pro-freedom side of the debate. And he defends it against the nationalists and populists who are attacking it right now.

People over a certain age on the political right tend to still use the word “socialism,” but often as a catch-all term for things they dislike. This is different from the word’s commonly understood meaning of state ownership of the means of production, belief in dialectical materialism, teleological stages of history, or any of the other things socialists actually believe in.

People under a certain age on the political left often say they favor socialism. But they, too, have given the word a new and different meaning. They typically define socialism as a more-or-less market economy with a large welfare state, as in the Nordic countries. They are also often careful to add the qualifier “democratic” as an implicit nod to what socialism’s original meaning entails.

When people give the same word different meanings, confusion reigns. When people today lob the s-bomb, they are often talking  at each other, not to each other. The real debate is elsewhere.

This tactic is great for getting people riled up, though. The heat-without-light approach has advanced the careers of people like Fox News host Tucker Carlson and former President Trump on the right, and Sen. Bernie Sanders and Rep. Alexandria Ocasio-Cortez on the left. But it makes substantive debate difficult.

Openness and liberal institutions have generated more wealth for more people than any other socioeconomic system in history. But they are also unpopular. Norberg has some ideas on why, drawing on a mix of history, economics, and psychology. He sums up his thesis on page 6:

As I will argue, the reason that the Enlightenment and the Industrial Revolution started in Western Europe was that this region of the world happened to be the most open, partly just out of luck. It has been repeated in every place that has gone through similar institutional changes. It is not the triumph of the West, it is the triumph of openness.

First, the history. The last two centuries have seen a mass enrichment unlike anything in human history. As economic historian Deirdre McCloskey has pointed out, people today are 30 times wealthier than our ancestors were in about 1800. Not 30 percent more, but 30-fold. As President Biden once said about a different issue, this is a big deal. Since the Great Enrichment began, life expectancies have doubled. Infant mortality is down by more than 90 percent. Famines today have political causes, not natural ones. Violence, both intentional and accidental, are sharply down across the board. A few years ago, the percentage of world population living in absolute poverty—$1.90 per day or less—fell below 10 percent for the first time ever. Almost every long-run trend is showing improvement.

This historical process is as important as the taming of fire or the invention of the wheel. This is what Norberg defends. And it needs defending, because the openness and liberal values that made it all possible are unpopular. Psychology helps to explain why.

People respond to threats more sharply than to good news. In lab experiments, people feel the sting of loss about twice as sharply as a gain of similar amount. Psychologists call this loss aversion. We evolved this trait because mother nature is a superb economist. People have only so much attention to give to things, so we have evolved ways to economize on it. When things are going well, we can leave them alone, and save our scarce attention for dealing with threats. We are hardwired to pay more attention to threats, because long ago there was a survival advantage in doing so.

This tendency is not unique to humans, and long predates us. In a way, the modern life we all enjoy runs counter to hundreds of millions of years of natural selection processes. No wonder liberals have an uphill battle!

In the last two centuries or so since the Great Enrichment began, threats have become progressively less menacing. People don’t have to worry nearly as much about famine, disease, or violence. But that same impulse still exists. Now it gets channeled differently. Socialists—actual ones—viewed capitalists as threats. Populists, from William Jennings Bryan to Josh Hawley, frame various elites as threats. Nationalists view immigrants and foreigners as threats.

Who and what people consider to be threats changes with the times. But that core psychological mechanism remains constant. Some kind of outside Other always poses a threat to the in-group, which must always be defended. This in-group can be a family, tribe, race, nation, political party, or just about anything else. People can also have multiple in-groups at the same time, and can shift seamlessly between them. A Republican and a Democrat who would be enemies in one setting might become fast friends at a baseball game if they like the same team, then go back to being enemies when the game is over.

The key point is that the in-group/out-group dynamic is in everybody’s DNA, and is where the urge to close society comes from. Norberg here draws on the political psychologist Karen Stenner’s 2005 book The Authoritarian Dynamic, which argues that about a third of people have an underlying authoritarian impulse in them—but it doesn’t express itself unless people feel threatened. During normal times, they are just as open and amiable as anyone else. But when they feel threatened, “they react explosively,” Norberg writes on p. 343. “They become intolerant of diversity and dissent and willing to restore unity by government control, even if it wrecks rule of law and free speech.”

Liberal institutions are powerful enough to double lifespans and increase prosperity 30-fold in a handful of generations. At the same time, they are vulnerable to attacks like this.

Prior liberal flowerings got started in societies as diverse as Ancient Greece and Song dynasty China. But none of them lasted. The general intellectual climate wasn’t open enough to openness. Plato was executed essentially for nonconformity. After Mongol invaders ended the Song dynasty, the succeeding Ming dynasty responded to the threat by destroying the world’s most advanced fleet of oceangoing ships and banning nearly all foreign contact.

That vulnerability is why the open society will always need defending, especially as its attackers change tactics every generation or two. Norberg’s defense is perfectly suited for this generation’s emerging threats. Populist and nationalist governments have come to power in recent years in countries such as Brazil, Mexico, Hungary, and elsewhere. President Trump’s trade war, immigration restrictions, race-baiting were slowing the longest economic expansion in U.S. history and causing cultural divisions even before COVID-19 hit.

Even after he cost his party the House, the Senate, and the presidency, the Republican party is continuing along a national populist trajectory. The progressive wing of the Democratic party is pushing similar policies in different packaging, on issues from international trade to technology policy. The United Kingdom’s Brexit debate, which should have been about escaping the European Union’s burdensome regulatory, agricultural, and tax policies, was instead hijacked by ugly nationalist impulses, and became divisive for all the wrong reasons. Strongman governments and nationalist political parties are springing up in places that should know better, such as Eastern Europe, which bore the brunt of both fascism and communism in the 20th century.

Norberg writes clearly and persuasively, with passion, and without anger. It is an impressive performance, and a joy to read. He has only one notable slip in 384 pages, and that is his support for a carbon tax on pages 330-331. Ironically, this comes in a section about the knowledge problem in economics. A centralized body such as Congress is unlikely to have the on-the-ground knowledge it needs to put an accurate price on carbon emissions.

Perhaps more significantly, the carbon tax suffers from public choice problems—which basically means that politicians tend to behave like politicians. A cardinal rule of politics is that policies are made and enforced by the government we have, not the government we want. Even if Congress did overcome the knowledge problem, it is unlikely that people like Nancy Pelosi and Mitch McConnell, or whoever succeeds them down the road, would craft a carbon tax on the merits. For Norberg, a carbon tax is “supposed to be an incentive, not a source of revenue.” This is surely not how a carbon tax would work under a real-world government.

That quibble aside, Open is one of the best books of its kind to come out in years. It is the right defense of the right values at the right time.

Norberg is not the only voice in favor of openness. Recent works by economists Virgil Storr and Ginni Choi, psychologist Joseph Henrich, and experimental economist Bart Wilson are other recent contributions. Matt RidleySteven Pinker, and Deirdre McCloskey have all been flying the flag for openness, tolerance, and dynamism for years. But just as Julian Simon was in his day, these voices of reason are too often drowned out by a chorus of doomsayers.

Markets are inherently dynamic and ever changing. No one is in charge of them, and no one directs the process. Markets work best when people are open, tolerant, and cooperative. People need to get along with people who look different, speak differently, and may live far away. It takes trusting strangers. That not natural to the human brain, which evolved to fit a hunter-gatherer world. But open markets have gotten us this far. If we let them, they can take us much farther. Whether we do or not will be this generation’s defining debate.

This Week in Ridiculous Regulations

CEI published its new Agenda for Congress last week. We also held a launch event featuring Sen. Rand Paul. Meanwhile, the 2021 Federal Register surpassed 15,000 pages. Agencies issued new rules ranging from sablefish season to airplane airbags.

On to the data:

  • Agencies issued 45 final regulations last week, after 83 the previous week.
  • That’s the equivalent of a new regulation every three hours and 44 minutes.
  • With 687 final regulations so far in 2021, agencies are on pace to issue 3,279 final regulations this year. 2020’s total was 3,327 final regulations.
  • Agencies issued 39 proposed regulations in the Federal Register last week, after 63 the previous week.
  • With 419 proposed regulations so far in 2021, agencies are on pace to issue 2,014 proposed regulations this year. 2020’s total was 2,021 proposed regulations.
  • Agencies published 436 notices last week, after 432 notices the previous week.
  • With 4,693 notices so far in 2021, agencies are on pace to issue 22,563 notices this year. 2020’s total was 22,480.
  • Last week, 844 new pages were added to the Federal Register in a three-day week, after 1,069 pages the previous week.
  • The average Federal Register issue this year contains 290 pages.
  • With 15,067 pages so far, the 2021 Federal Register is on pace for 72,438 pages in 2021. The 2020 total was 87,352 pages. The all-time record adjusted page count (subtracting skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. There are two such rules so far in 2021, none from the last week. Agencies published five economically significant rules in 2020, and four in 2019.
  • The running cost tally for 2021’s economically significant rules ranges from net savings of $100.7 million to net costs of $362.5 million. The 2020 figure ranges from net savings of between $2.04 billion and $5.69 billion, mostly from estimated savings on federal spending. The exact numbers depend on discount rates and other assumptions.
  • Agencies have published 12 final rules meeting the broader definition of “significant” in 2020, with two in the last week. This is on pace for 58 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 116 new rules affect small businesses. Two are classified as significant. 2020’s totals were 668 rules affecting small businesses, 26 of them significant.

Highlights from last week’s new regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

Hayek Was No Diplomat, but He Had a Point

Peter Boettke summarizes’ F.A. Hayek’s famous 1974 Nobel Prize lecture on p. 83 of his new book The Struggle for a Better World:

At the start of Hayek’s lecture, he implores his audience to fess up to the fact that those in the economics profession had nothing to be very proud of, as they had made a mess of things.

This is not how one wins hearts and minds. No wonder Hayek was unpopular in his own profession! But he makes an important point that better diplomats still need to make today, again and again:

Hayek goes on to argue that the cause of the mess was the misconstruing of what economics can, cannot achieve as a science. Economics is a science of complex phenomena, yet the modern administrative state demanded an economics of simple phenomena to accomplish the policy tasks conceived.

Economists and the policy makers they work with need to be more humble. But humility does not come easily to people in public policy. In fact, there is a selection bias against it. People tend not to enter the field unless they believe they can come with a plan that’s better than what everyone else has come up with. This audacity is desirable to some extent–things would rarely improve if nobody thought improvement was possible. Market entrepreneurs must have the same audacity to succeed in their world. But many policy makers do not check their ambitions with enough humility. And unlike private entrepreneurs, there is no profit-and-loss system to let them know when they’re wrong.

Who Bears the Burden of Proof in Justifying Regulations?

John Stuart Mill gave his answer on p. 938 of the Liberty Fund edition of his Principles of Political Economy, in volume 3 of his collected works:

“[T]he onus of making out a case always lies on the defenders of legal prohibitions.”

The modern legal scholar Randy Barnett calls this the presumption of liberty. People are presumed to be free to act. If a third party wants to intervene, the burden is on them to prove why they should be allowed to.