This Week in Ridiculous Regulations

Happy new year, everyone. The Biden administration’s first Federal Register volume is officially complete. While there likely will not be much significant legislation in 2022, which would put downward pressure on new rule counts, the administration may react to this by enacting policies on its own without congressional authorization, which would put upward pressure on new rule counts. Which of these opposing forces will be stronger? We’ll find out. Meanwhile, agencies issued new rules ranging from sculpin classification to trading weapons of mass destruction.

On to the data:

  • Agencies issued 56 final regulations last week, after 63 the previous week.
  • That’s the equivalent of a new regulation every two hours and 40 minutes.
  • There were 3,257 new final regulations in 2021. 2020’s total was 3,218 final regulations.
  • That’s the equivalent of a new regulation every two hours and 41 minutes for the entire year, 24/7.
  • Agencies issued 38 proposed regulations in the Federal Register last week, after 26 the previous week.
  • There were 2,094 new proposed regulations in 2021. 2020’s total was 2,102 proposed regulations.
  • Agencies published 328 notices last week, after 370 notices the previous week.
  • There were 21,985 notices in 2021. 2020’s total was 22,480.
  • Last week, 1,426 new pages were added to the Federal Register, after 1,310 pages the previous week.
  • The average Federal Register issue in 2021 contained 299.8 pages.
  • The 2021 Federal Register contains a total of 74,352 pages. 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 26 such rules so far in 2021, one 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 $13.54 billion to $19.36 billion. 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.
  • There were 387 new regulations meeting the broader definition of “significant” in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 912 new rules affected small businesses; 101 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.

This Week in Ridiculous Regulations

The Federal Register took Christmas Eve off, and here’s hoping everyone had a happy holiday season. One more week to go in 2021. The Food and Drug Administration finally approved at-home COVID-19 pills. November’s consumer spending growth slowed from October, but still grew. Meanwhile, agencies issued new rules ranging from fragrance components to blueberry councils.

On to the data:

  • Agencies issued 63 final regulations last week, after 74 the previous week.
  • That’s the equivalent of a new regulation every two hours and 40 minutes.
  • With 3,205 final regulations so far in 2021, agencies are on pace to issue 3,257 final regulations this year. 2020’s total was 3,218 final regulations.
  • Agencies issued 26 proposed regulations in the Federal Register last week, after 50 the previous week.
  • With 2,052 proposed regulations so far in 2021, agencies are on pace to issue 2,086 proposed regulations this year. 2020’s total was 2,102 proposed regulations.
  • Agencies published 370 notices last week, after 422 notices the previous week.
  • With 21,657 notices so far in 2021, agencies are on pace to issue 22,011 notices this year. 2020’s total was 22,480.
  • Last week, 1,310 new pages were added to the Federal Register, after 1,011 pages the previous week.
  • The average Federal Register issue this year contains 300 pages.
  • With 73,103 pages so far, the 2021 Federal Register is on pace for 74,297 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 25 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 $8.94 billion to $14.06 billion. 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 372 final rules meeting the broader definition of “significant” in 2021, with four in the last week. This is on pace for 378 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 901 new rules affect small businesses; 97 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.

In the News: Christmas Trees

I was quoted today in a Washington Times story about Christmas trees:

It’s been a tough year on a lot of fronts, from the pandemic to inflation, but holiday traditions are made of strong stuff,” said Ryan Young, a senior fellow at the libertarian Competitive Enterprise Institute. “It also helps that artificial trees last for many years, so most of the homes that go that route are unaffected by supply network problems at least in the tree department.”

Best Books of 2021: Keith E. Stanovich, The Bias that Divides Us: The Science and Politics of Myside Thinking (MIT Press, 2021)

Today’s political polarization isn’t just annoying, it’s damaging important cultural and family institutions. And tensions won’t de-escalate until people figure out the root of the problem. University of Toronto psychologist Keith Stanovich has a compelling theory about those roots in his book The Bias that Divides Us: The Science and Politics of Myside Thinking. Surprisingly, it is only partially related to the myside thinking in his subtitle. 

First, a bit of advice for readers: skip the first three chapters and go right to chapter four, which begins on page 75. The first three chapters are dense mash of definitions of terms and hair-splitting distinctions that are unimportant to Stanovich’s main argument. They also contain something of a literature review on biases, to which Stanovich and his colleagues are important and prolific contributors. This is useful to undergraduate and graduate students, but mostly useless to the lay reader. In these early chapters, Stanovich also spends more time explaining what myside bias isn’t than what it is. It would have been better to organize it the other way around.

So Stanovich is no prose stylist, and his book is poorly organized. Yet it is on my best books of the year list. Why? Because chapter four gave me the type of eureka moment I have experienced only a handful of times in my career. Stanovich’s thesis is essential for understanding the current political moment, and will also likely help shed light on future political changes. This is a book that should have a long shelf life.

Instead of asking why people hold certain beliefs, Stanovich flips the question around. What if people don’t acquire beliefs, but beliefs acquire people? Stanovich argues that beliefs are subject to the same evolutionary forces as living organisms. The idea is similar to Richard Dawkins’ selfish gene hypothesis. 

Genes are what get replicated, not individuals. So genes care more about traits that help them replicate more than about traits that benefit individual gene carriers. This is one reason why parents will sacrifice themselves to save their children, and why people care more about close relatives than strangers. Protecting the people close to you protects your genes.

As with genes, so with beliefs. Beliefs that stick around and become popular get that way because they tend to be very good at replicating themselves—whether or not the beliefs have any basis in reality, or are useful to the people that adopt them. Beliefs that exploit human psychological quirks, such as myside bias, are more likely to “succeed” in this sense, even if they are false or harmful. Those with less meme-like qualities die out or remain rare. 

Myside bias is just such a replicating tool that successful beliefs use. It is both an attack and a defense. It is form of motivated reasoning related to confirmation bias, though not quite the same thing. Where confirmation bias is just a neutral tendency that humans evolved to save cognitive effort, myside bias is purpose-driven. It is rooted in defending one set of beliefs, and attacking competing beliefs. In a way, political partisans are unknowing participants in the natural selection of ideas, and not in a good way.

Republicans and Democrats both tend to highlight evidence supporting their position on an issue, and downplay or ignore contrary evidence—and both parties do this to the same degree. One is not better than the other. Much of the literature Stanovich reviews shows little to no difference between progressives and conservatives in their susceptibility to myside bias, and little difference in other personality traits like openness, agreeableness, and so on. Classical liberals show some psychological distinctiveness from conservatives and progressives, but not very much, and consistent liberals are also relatively rare.

Stanovich mostly sticks to how his “selfish beliefs” thesis affects politics. But it has wider applications. For example, it can help explain why some religions spread, why others endure despite having few adherents, and why others never get off the ground. Religions that have an ethos of proselytizing tend to spread more widely than those that don’t—which is an obvious point, if one thinks about it. But there is a reason why most people belong in the first place to religions interested in converting people. It’s a belief-replicating strategy that works.

Other religions are less interested in spreading, yet they can still endure for millennia. This is because they have strategies of their own. One of them is to have a high cost of joining—people who work hard to gain entry tend to prize it highly, and are unlikely to give up membership (this is also why college fraternities have hazing rituals). Though this doesn’t gain many new convert, it is a potent defense for existing members against competing religions. This is also why proselytizing religions typically have low barriers to entry, and non-proselytizing religions have higher barriers.

Another strategy is to set the group apart from the rest of society through distinctive dietary requirements, appearances, language, and other cultural markers. Life in such an out-group can be tough for individuals. But leaving is also extremely costly, because society at large will likely never fully accept the defector, so relatively few people do. Bad for the person, but good for the belief.

The selfish belief thesis, and its expression through myside bias, has lots of fertile ground for researchers to explore, both in and out of politics.

Stanovich’s concluding chapter, which is also his longest, focuses on what to do about myside bias. The obvious solution to today’s political polarization is to not have a rooting interest. Praise where due, criticism where due. Do support principles; don’t support parties or politicians. The problem is that the this won’t work. Most people’s brains don’t work that way, thanks to our hunter-gatherer legacy of instinctive ingroup-outgroup thinking. Partisanship, and partisan media, are here to stay. Reformers have to fight their battle in the real world if they want to make any improvements.

One such defense mechanism Stanovich suggests is simple awareness. Just being aware that you, as a human being, suffer from myside bias, can help you look for it and do a little something to fight against it. It isn’t a perfect solution—and, spoiler alert, there isn’t one—but it’s a start.

Another defense comes from Stanovich’s insight on page 85 that “There is no general tendency for a person to have high or low myside bias.” It instead comes with certain ideas, because myside bias allows those ideas to successfully persist and spread. This is why seemingly unrelated political stances tend to cluster together. 

For example, to take two hot-button issues on which CEI takes no position, odds are that if you know a person’s position on abortion, you probably also know their position on the Kyle Rittenhouse verdict. Those issues have nothing to do with each other, yet people’s stances on them cluster far more tightly than chance would predict. When you see unrelated issue stances cluster together like that, those issues are likely prone to strong myside-style thinking. Treat those issues with caution. 

It also helps to realize that merits often do not matter to people when they take sides on an issue. This is a difficult lesson for think tankers like myself to learn, since we make our living arguing on the merits. But as Stanovich writes on page 142, “Based on the findings of a wide range of studies, most American voters can’t articulate a principle behind their stance on a particular issue and often don’t know their stance on many issues until they hear the stance supported by their own partisan group.” Regarding a study on attitudes toward welfare policy, “It was as if the subjects did not know their position on the issue until they were told which party was supporting it.”

Another rule of thumb is that the most myside-prone issues tend to be lack a clear right or wrong. People tend not to argue about the law of gravity; they do tend to argue about outrage-of-the-moment culture war news stories, where both sides usually have something resembling a good point. The outrage comes not from the merits of the issue, which are often ambiguous, but from people using them (or are being used by their beliefs) to express their identity. Defend the in-group, attack the out-group. Again, bad for the person, but good for the belief’s replicability.

Which leads to Stanovich’s most heartfelt recommendation: the need to reject identity politics. Here he argues with a passion not seen in the earlier chapters. Most of his focus is on the insular academic world he inhabits. But it is no secret that myside beliefs have harmed the quality of research in psychology, Stanovich’s field. Various grievance studies departments survive not on the quality of their research, which tends to be poor, but by preying on peoples’ ingroup-outgroup thinking, where myside bias thrives. Rather than foster cooperation, they try to get people to compete in a zero-sum game of social status by dividing people in groups and encouraging them them to duke it out based on those group identities. This strategy does little to fight racism or pursue other worthy social goals. But as a replication strategy for myside-prone beliefs, it is brilliant. 

I’ve long thought, based on personal experience, that most people are twits when they are college age and then slowly grow out of it as they get older. So I tend to roll my eyes, rather than get outraged, when campus political correctness veers into cartoon territory. It’s mostly social signaling, not serious policy proposals. I also believe that well-intentioned efforts to be inclusive should be applauded, even if they are sometimes clumsy. They are a conscious effort to broaden people’s circle of concern beyond their in-groups, which is something everyone from Adam Smith to Stanovich himself favors.

But Stanovich has a point when he argues that campuses saturated with myside thinking can have a long-run effect on students as they move into the real world. This may be one reason why politics has become so polarized in the last decade or so—the first generation of students who grew up in stifling myside-biased campus environments is now old enough to play leading roles in business, politics, and media. 

The best solution is also long-run—reshape universities to reject identity politics and to instead encourage open, civil discussion of ideas. Discovery and growth are rarely comfortable, but they’re worth it. Getting there will be difficult and will require structural changes. These include requiring grievance studies departments to meet the same academic standards as real departments in the humanities and social sciences; depoliticizing mission statements and administrative jobs; changes to funding, hiring, and admissions practices; and, most importantly, shifting social norms in favor of civil engagement, rather than righteous shouting down. These are unlikely to come to pass anytime soon. But even small changes at the margin can have significant long-term effects. 

Readers interested in further exploring similar themes would also like two other books also published in 2021. Julia Galef’s highly readable The Scout Mindset: Why Some People See Things Clearly and Others Don’t draws a contrast between the scout mindset and the soldier mindset. Scouts search for correct information, as though they are trying to draw an accurate map. A soldier’s job is to defend something, right or wrong. Everyone is part soldier in this sense. And strong partisans are mostly soldier. Galef offers advice on how to keep the soldier mindset in its place and embrace our inner scout. 

Galef’s best recommendation is regular practice. Take the time to engage opposing ideas without anger or passion. You can dance with an idea without marrying it. Try asking tough questions about your own beliefs. If a news story plays into your ideological priors, assume it’s too good to be true unless you investigate more closely. These are learned skills that take effort, which is why most people won’t bother. But they pay off.

University College London professor Brian Klaas’ similarly readable Corruptible: Who Gets Power and How it Changes Us is also a good complement to Stanovich. Where Stanovich uses an evolutionary approach to understand ordinary people, Klaas uses an evolutionary approach to understand the powerful. He is interested in the types of people who seek power, and are successful in obtaining it. As it turns out, there is a natural selection process that favors people with undesirable personality traits in the pursuit of power. Hayek was right; the worst really do get on top

Klaas also offers suggestions for how to contain ambition. He correctly focuses mostly on the institutional level; for different results, we need different rules. The rules of the political game need to weed out people right at the start who want power for the wrong reasons. They need to keep a close eye on even good people in power, because power tends to corrupt. And they need to limit the damage that any one individual can do.

If time and space allow, I’ll give those books their due. They certainly belong with Stanovich’s The Bias that Divides Us on the list of best books of the year.

Best Books of 2021: Ryan Bourne, Economics in One Virus (Cato Institute, 2021) and Caleb Fuller, There Is No Free Lunch (Freiling, 2021)

Economists are an unpopular bunch. One reason for this is that much of their job is putting parameters on people’s utopias. Spending more money on one issue people care about means spending less on other issues that someone else cares about. Neither politicians nor the public have kind words for those who remind them that tradeoffs exist. Economists, regardless of political persuasion, also tend to have different views than the general public on issues such as trade, immigration, minimum wages, and rent controls. Getting shouted down by people who have not studied the issue at hand is a feeling many economists know all too well.

This dismal reputation is undeserved for two reasons. One, the economic way of thinking is useful. It can shine light on how grocery stores work, why politicians behave the way they do, and even on feeding behavior in birds. Two, it is fun. Basic economic principles are at work, right now, almost everywhere in the real world. Looking for them, and seeing them in action, is a discovery process that provides constant “A-ha!” moments. Two of this year’s best economics books explore both of those themes in ways that anyone can understand.

Economics in One Virus: An Introduction to Economic Reasoning through COVID-19, by Cato Institute scholar Ryan Bourne, shows how applying basic economic concepts can make dealing with the pandemic easier and less contentious. Grove City College economics professor Caleb Fuller’s No Free Lunch: Six Economic Lies You’ve Been Taught And Probably Believeshows that economic reasoning is not only useful, it can be fun. Both books give clear and enjoyable explanations of basic concepts in the economist’s toolkit, in different ways.

Bourne’s Economics in One Virus is the more thorough of the two books, about 270 pages of text to Fuller’s 110. As the title implies, it focuses on current events, while Fuller’s book is more evergreen. First a bit on Bourne’s book, then we will turn to Fuller’s.

Each of the 16 chapters in Economics in One Virus focuses on a different economics concept. He gives layman-friendly explanations of tradeoffs, risk analysis, trade and specialization, and more. His application of marginal thinking to COVID-19 lockdowns and other policies is especially enlightening. It shows that politicians are not as impactful as they think they are, and gives good reason for people to be more civil to their political opponents. Bourne shows why it is perfectly reasonable to support vaccines and mask wearing, while also opposing mandates.

When COVID first hit, people started adapting right away by staying home and socially distancing. They didn’t wait for governors and presidents to tell them what to do. When some states started passing mandates and other rules a few weeks later, they had little effect at the margin. Most people were doing the right thing anyway, so lockdowns and masks mandates had little additional effect. That’s what thinking at the margin is.

People who weren’t listening to their families, friends, and colleagues probably didn’t suddenly change their mind because of something some politician said. If anything, lockdown orders and mask mandates likely caused a backlash, with some people to digging in harder against safety measures. A virus with no political views of its own became a heated political issue for no good reason, which likely resulted in more funerals than necessary.

The lessons from Bourne’s application of marginal thinking are that most people are smarter than politicians think, and that mandates and other measures have smaller effects than most people on either side of the political spectrum thinks. They are bad policy, not just on libertarian grounds, but because their effects are small, especially compared to the amount of social tension they cause. I tried but failed to articulate this point early in the pandemic, and was delighted to see Bourne do it right. That discussion alone is worth the price of admission.

Bourne’s other highlight is Chapter 13’s introduction to public choice theory, which is underserved in most popular economics books. Public choice theory, in a nutshell, says that politicians will always behave in a self-interested manner; design your political systems accordingly.

Too many people have an idealized view of politics, where things would improve if we can just pass the right bill or elect the right people this time. Government doesn’t work that way. Policies are made by the government we have, not the government we would like to have. Any well-meaning reform will have to make it past the desks of people like Mitch McConnell and Nancy Pelosi. It will be watered down, compromised, and loaded with unrelated political favors. Reformers who do not take this into account will fail.

The solution is to focus on larger political processes, not just this or that bill or regulation. We know that politicians will always have an incentive to get reelected and to grow their budgets and powers. But we also know that different rules will give different results. A well-designed political system channels politicians’ incentives in a better direction—or at least a less harmful one.

A political system that disperses political power will be freer than one that concentrates it in a king or a president. A system that makes it difficult to pass hasty “flash policy” during a crisis will be more resilient than one that lets it through. That is why we have a Senate, as well as a House of Representatives. That said, America’s recent experience with the PATRIOT Act, Dodd-Frank financial regulations, and now trillions of dollars of COVID spending bills shows that we need to improve our rules in that area. Harmful crisis legislation has happened three times already this century. Absent reform, it will happen again when the next crisis hits.

With the possible exception of the notion of tradeoffs, public choice theory is probably the most important defense the public has against politicians and populist demagogues. Bourne’s highly readable application of public choice to COVID-era policy making is an important public service.

Fuller’s There Is No Free Lunch is more about the ideas themselves than about applying them to specific issues like the pandemic. At the same time, it is more focused than Economics in One Virus. Where Bourne gives a tour of more than a dozen different concepts, Fuller’s six chapters each cover a different aspect of one idea: opportunity costs. They are each framed as myths—destruction is profit, trade is war, exchange is exploitation, and so on—which he then busts.

Early on, Fuller acknowledges his debt to the 19th century French economist Frederic Bastiat and his 20th century American successor, Henry Hazlitt. Bastiat wrote the famous parable of the broken window, which remains the classic explanation of opportunity costs.

In this story, a young boy accidentally breaks a shop window. The townspeople hail him as an economic hero, because he has created a job for the glass repairman. He will in turn spend his money on a new suit, the clothier will spend that money on something else, and on down the line. This may sound familiar, because many politicians use similar reasoning in promoting their spending bills.

The problem is that the cheering citizens have ignored opportunity costs. They see the repairman’s new suit, but they don’t see that if the window was never broken in the first place, the shop owner could have had both the window and a new suit. Instead, he is down a window, and the economy as a whole has the same amount of new suits, not more of them. The boy caused a net loss.

Hazlitt updated Bastiat for the 20th century with his 1946 book Economics in One Lesson, which applied the broken window fallacy across a range of policy issues. Fuller’s book is a worthy, and needed, update to the Bastiat-Hazlitt tradition. It helps that Fuller is an excellent storyteller. Even veteran economists will find new material here.

As a way to show the opportunity costs of rent controls, Fuller shares a story from the economist Bertrand de Jouvenel about post-World War II Paris. Rent controls made apartments so scarce that people would stalk the elderly day after day and pounce on their rent-controlled apartments as soon as they died. Lower money prices for rent raised non-money prices, such as scarcity. Would-be renters who could have been working and earning money instead would spend their time ghoulishly tracking people waiting for them to die. In that case, human decency was a cost of rent controls.

Speaking of which, rent control also enables discrimination. When lots of people queue up for scarce apartments, landlords can choose tenants based not on price, which is set by regulations, but on their prejudices. They also tend to choose childless couples over couples with children, who will draw on the walls and break things. In New York City, basic maintenance was often neglected, because controlled rents didn’t always cover the cost. Arson rates went up, as some landlords decided to torch their own buildings rather than be legally forced to lose money. Some landlords even fled to the Caribbean and assumed new identities, as documented in Walter Block and Edgar Olsen’s edited book Rent Control: Myths and Realities, which includes several pictures of burned-out buildings. Was the destruction caused by bombs or rent control? The answers are at the end of their book.

Fuller also shares economist Steven Cheung’s story about Hong Kong landlords’ response to a rent control provision allowing for rent increases when tenants turn over. They would sometimes remove windows during monsoon season so rent-controlled tenants would move out rather than tolerate the conditions. The landlords could then charge higher rent to the next tenant.

Occupational licensing has its own opportunity costs. They benefit incumbents, who are enriched by being able to charge higher prices and keep out competitors. And many would-be workers lose career opportunities.

But what about consumers? Here Fuller uses what I call an “invisible coffins” argument. Occupational licensing is associated with measurably more electrocution deaths, blindness, and even poorer dental hygiene.

That is because those licenses can cost thousands of dollars and hundreds of hours of training to obtain. Not only does this restrict supply, but those extra costs are factored into prices; businesses pass on their costs. This raises the cost of basic maintenance services in licensed professions like electrical work and dentistry, so poorer people will sometimes just do without, try to do it themselves, or turn to gray and black markets. That means more avoidable accidents. The effect is large enough to show up in the data, as shown in studies like this one and this one.

I have only one substantive criticism of There Is No Free Lunch. Fuller says on page 69, “here it is, one more time with feeling: Let’s think with our heads, not our hearts.” I argue that it is better to think with our heads and our hearts. Yes, it’s nice that markets are efficient. And it does take thinking with our heads to see why, using the lens of opportunity costs. That’s all necessary, but it isn’t sufficient, and that’s why we need to think with our hearts, too.

The post-1800 Great Enrichment has increased ordinary people’s living standards thirtyfold. This is a historical development on par with the taming of fire or the invention of the wheel, and markets made it possible. Markets enable people to rise out of poverty. They help people live longer, healthier lives.

Markets also encourage virtue, as Virgil Storr and Ginni Choi argue in their book Are Markets Moral? Participating in markets teaches people how to cooperate, how to compete within rules, and how to trust and be trustworthy. They can use their market-generated wealth to give to charities, to support the arts and make their own art, to travel, to spend time with family, and to create opportunities to our children. Our heads show us that markets make all that possible. But we need our hearts to show us why we want those things in the first place.

Bourne’s Economics in One Virus shows how sound economic thinking can make life in the COVID era safer and less divisive, and has ideas for effective damage control against politics. Fuller’s There Is No Free Lunch shows how the simple concept of opportunity costs can help anyone gain insight into how everything, from bounties to retailing, actually works. Anyone who reads either of these books—or, better, both of them—will have both a clearer view of the world and some good ideas about how to make it better.

What’s Ahead for Regulation in 2022?

There are two questions about the coming year in regulation. The first is what will happen. The second is what should happen.

What will likely happen is… pretty much the status quo. Three thousand and some new final regulations and total compliance costs in the neighborhood of $2 trillion. An administration’s first year is typically its slowest, as far as rulemaking goes, and its final year is its most active, especially if there is a party change. Things will likely ramp up a bit in 2022, especially as agencies begin to implement rules related to the big spending bills, but not by that much—especially since the Build Back Better spending bill is likely now dead.

First-year presidents and their appointees are still installing their personnel, forming their agendas, and learning the ropes. And if there was a party change, they spend a fair amount of time reversing and undoing the pervious administration’s policies, rather than making new rules. This seems to have been the case here, with the Biden administration undoing nearly all of former President Trump’s regulatory executive orders and several agency-issued regulations—though Trump’s disastrous trade policies remain intact.

An administration’s final year is typically is its busiest for rulemaking, so 2024 could be a very busy year for both regulators and regulated—especially if there is a party change. Midnight rushes also happen even when the incumbent wins, because the rulemaking process takes several months at minimum. A smartly run administration will make sure that high-priority regulations make it through this process even if they are confident in victory, just in case. But when the other side is about to take over, an administration will cram as much of its remaining agenda as it can into its final days. Nobody knows what will happen in 2024, but some form of a regulatory midnight rush is almost a certainty.

This coming year, the Biden administration’s second, will likely be in between its first and fourth years. Rulemakings will increase as agencies’ political appointees find their footing. But the increase will be smaller than it could have been, since the only major legislation passed this year was in the form of spending bills. A 50-50 Senate means additional substantive legislation is unlikely in 2022. While the spending bills that did pass have regulatory components, their focus was on spending, in the misguided view that spending was necessary to revive the COVID economy.

It is a big deal that the Build Back Better spending bill is likely now dead. Some of its regulatory provisions, especially for energy and environment, will likely come back in some other form. And President Biden will likely enact several of its planks without congressional input, using the same “pen and phone” tactic the Obama and Trump administrations used. If Congress changes hands in the midterm elections, look for something of a midnight rush before Congress’ next session convenes. This could also become a major source of rulemaking in 2023 if Republicans have the numbers to block most new legislation.

That’s what likely will happen. What about the separate question of what should happen? There are two main things. One is to ease the ongoing supply network crisis by repealing #NeverNeeded regulations that are slowing down trademaritime shipping, trucking, and other important industries. The continuing fight against COVID-19 would benefit from a more reasonable FDA approval process, and fewer rules blocking access to telemedicine and other modern health care methods.

The second thing that should happen is to clean up the regulatory code. This is a long-term process, but President Biden has the opportunity to create a lasting positive legacy if he begins it. The best option is an independent regulatory cleanup commission that combs through different parts of the 185,000-page Code of Federal Regulations on a 10-year cycle. I wrote a paper outlining how a cleanup commission would work here. New regulations should also have automatic 10-year sunsets, renewable by Congress, so when they become obsolete, they would not linger on for decades, as they do now.

For more reform ideas, see Wayne Crews’s Ten Thousand Commandments report and the regulatory reform chapter in CEI’s Agenda for Congress.

This Week in Ridiculous Regulations

Two big pieces of good news last week were the Senate’s decision to shelve the $1.7 trillion Build Back Better spending bill and the Federal Reserve’s announcement that it will begin tapering back money supply growth, which should help tame inflation starting next year. In sadder news, COVID-19 claimed its 800,000th death in the United States. It has killed more than 5.3 million people worldwide. Meanwhile, agencies issued new rules ranging from livestock herders to ulcer management.

On to the data:

  • Agencies issued 74 final regulations last week, after 77 the previous week.
  • That’s the equivalent of a new regulation every two hours and 16 minutes.
  • With 3,142 final regulations so far in 2021, agencies are on pace to issue 3,260 final regulations this year. 2020’s total was 3,218 final regulations.
  • Agencies issued 50 proposed regulations in the Federal Register last week, after 29 the previous week.
  • With 2,026 proposed regulations so far in 2021, agencies are on pace to issue 2,102 proposed regulations this year. 2020’s total was 2,102 proposed regulations.
  • Agencies published 422 notices last week, after 384 notices the previous week.
  • With 21,287 notices so far in 2021, agencies are on pace to issue 22,174 notices this year. 2020’s total was 22,480.
  • Last week, 1,101 new pages were added to the Federal Register, after 1,811 pages the previous week.
  • The average Federal Register issue this year contains 299 pages.
  • With 71,791 pages so far, the 2021 Federal Register is on pace for 74,483 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 25 such rules so far in 2021, one 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 $8.94 billion to $14.06 billion. 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 356 final rules meeting the broader definition of “significant” in 2021, with four in the last week. This is on pace for 380 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 879 new rules affect small businesses; 94 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.

Senate Shelves Build Back Better Spending Bill, For Now

The Senate will not vote on the Build Back Better (BBB) spending bill this year, though they might take it up again next year. It does not have 50 votes without Sen. Joe Manchin’s (D-WV) support, which appears not to be forthcoming. This is a good thing for two reasons. One is inflation. The other is that Gross Domestic Product (GDP) and unemployment numbers are well on their way to pre-pandemic levels. A stimulus bill was never needed in the first place. There are policies Congress and state governments should pursue, but more deficit spending is not one of them.

Monetary policy has a much bigger effect on inflation than does fiscal policy, such as stimulus bills. Even so, Build Back Better would likely have added between a quarter and a half a percentage point of inflation on top of what we are seeing now. And it might have lasted for a decade or more, depending on how many of its temporary spending programs would have later been made permanent.

Considering that the Federal Reserve has traditionally targeted 2 percent inflation, BBB would have eaten up a big chunk of its usual inflation “budget.” Inflation is currently at 6.8 percent, the highest since 1982. The Federal Reserve today announced it would taper money supply growth. It will slow down a bond purchasing program and end it altogether in March, and will likely enact a series of up to three interest rate increases during 2022.

Since money supply growth is inflation’s biggest component, high inflation will be with us well into 2022, no matter what Congress does. But BBB-caused inflation on top of that would have made a bad problem even worse.

Manchin, and likely other Senate Democrats, may realize this is not a good look going into the midterm elections. President Jimmy Carter made important accomplishments in trucking and airline deregulation, and he appointed Paul Volcker as Federal Reserve chair, who ultimately slowed down the monetary printing press. But in the popular mind, Carter’s legacy is stagflation. If President Biden wants to avoid sharing Carter’s legacy, he should be quietly happy that his signature legislation is now on ice. He should see to it that it stays that way.

Biden should also avoid interfering with the Fed as it works to taper down today’s inflation. Since inflation can spark a temporary boom, politicians have always been tempted to put pressure on the Fed to goose the numbers a little leading into an election. (Lyndon Johnson and Richard Nixon were particularly egregious in this regard, as Peter J. Boettke, Alexander William Salter, and Daniel J. Smith argue in their book Money and the Rule of Law.) But the tradeoff of an inflationary boom now is a bust later.

There is no guarantee that Congress and President Biden will learn the right lesson. When inflation’s temporary stimulus effect wears off, policy makers are tempted to reach for the bottle again, rather than risk a hangover recession and hurt their chances for another term in office. This short-term thinking is what led to the 1970s stagflation. Had the process continued longer than it did, the result could have been Argentina-esque. It is crucial that today, Congress and President Biden respect the Fed’s nominal independence.

Fortunately, inflation is unpopular with the public. And economic fundamentals are in reasonably good shape, which means there is no need for inflationary stimulus. People hunkered down when COVID-19 hit, and are opening up when they feel safe—and when regulations allow them to. We aren’t through it yet, and it’s too early to tell how much effect the omicron variant will have. But the COVID recession had no stock market crash, no financial crisis, no housing bubble, no savings and loan scandal, or any other underlying economic illness. Traditional Keynesian stimulus does not apply to today’s economy. Build Back Better might be the biggest example of a #NeverNeeded policy yet.

The best thing that can be said about Build Back Better is that it was fighting the last battle, not the current one. Less charitably, Build Back Better was essentially a Democratic version of the PATRIOT Act, in which policy makers used a crisis as an excuse to put a bunch of longstanding wish-list items into a bill, and then market it as a must-pass crisis response. Not only would BBB have increased inflation, it would have used up more than $1 trillion dollars of resources that almost certainly have better uses than paying political favors—most of them COVID-unrelated.

GDP is already back to where it would have been had COVID never happened. Today’s ultra-low 4.2 percent unemployment rate looks better than it is, because many people are staying out of workforce, either for safety reasons or because they are content living off of savings for a little while longer. But even accounting for that, employment is in decent shape, and labor force participation is trending back to pre-COVID levels. Job openings are there for the taking—though rapid inflation is making it difficult for employers and employees to figure out fair wage rates.

Congress will instead turn its attention to other issues, such as voting rights. But it turns out there are policies Congress can pursue to fight inflation from the supply side. Money is growing faster than goods and services, causing higher prices. Removing regulatory obstacles to making goods and services will help to bring money and goods back into balance.

President Trump doubled tariffs, and President Biden is pursuing nearly identical trade policies. Scrapping those barriers alone would help unclog supply networks while lowering prices on hundreds of billions of dollars’ worth of goods, from big items like cars and houses to children’s toys and clothing.

There is no good reason for truckers to have a minimum age of 21 during a shortage when there are 18-year-olds perfectly able to do the job well.

U.S. ports operate at roughly half the efficiency of more modern ports like Rotterdam, which is open 24/7 and is heavily automated. While there isn’t much Congress can do about this, the biggest obstacle here are labor union contracts. These need to be modernized to avoid another supply network crisis and keep the U.S. shipping industry up to global standards. However, Congress can repeal the 1920 Jones Act, which attempts to protect the U.S. shipping industry but instead has reduced it to an uncompetitive rump of its former self.

Similar Buy American-style regulations requiring U.S.-flagged ships to dredge U.S. ports are why many ports are badly behind on dredging projects, and are unable to host many modern container ships.

Over a quarter of U.S. jobs now require some sort of occupational license from the government. Sixty years ago, it was 5 percent. Federal, state, and local governments need to get rid of unnecessary licenses that prevent willing people from creating more goods and services. Besides being the right thing to do, it would help to fight inflation.

None of these policies has the attention-grabbing cachet of a trillion-dollar piece of legislation. But unlike the BBB, they would stimulate new economic growth and help get inflation back under control.

This Week in Ridiculous Regulations

The number of new regulations this year topped 3,000, ending the week at 3,068, and the 2021 Federal Register topped 70,000 pages. Inflation went up to 6.8 percent, the highest since 1982, back when the 1970s stagflation was still winding down. Congress is working hard to avoid hitting the debt ceiling. While most people would do this by spending less, Congress is instead going to raise the ceiling. Meanwhile, agencies issued new rules ranging from wool trust funds to commuter airplanes.

On to the data:

  • Agencies issued 77 final regulations last week, after 67 the previous week.
  • That’s the equivalent of a new regulation every two hours and 11 minutes.
  • With 3,068 final regulations so far in 2021, agencies are on pace to issue 3,264 final regulations this year. 2020’s total was 3,218 final regulations.
  • Agencies issued 29 proposed regulations in the Federal Register last week, after 29 the previous week.
  • With 1,976 proposed regulations so far in 2021, agencies are on pace to issue 2,095 proposed regulations this year. 2020’s total was 2,102 proposed regulations.
  • Agencies published 384 notices last week, after 357 notices the previous week.
  • With 20,865 notices so far in 2021, agencies are on pace to issue 22,197 notices this year. 2020’s total was 22,480.
  • Last week, 1,811 new pages were added to the Federal Register, after 1,224 pages the previous week.
  • The average Federal Register issue this year contains 301 pages.
  • With 70,687 pages so far, the 2021 Federal Register is on pace for 75,199 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 24 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 $8.83 billion to $13.72 billion. 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 344 final rules meeting the broader definition of “significant” in 2021, with four in the last week. This is on pace for 366 significant rules in 2021. 2020’s total was 79 significant final rules.
  • In 2021, 859 new rules affect small businesses; 88 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.

In the News: Christmas Trees

I was quoted in a November 30 Washington Times article about how inflation and regulations are making Christmas trees more expensive.