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    Unmasking the Regulators

    BY Susan E Dudley
    07/01/2003
    by Susan E Dudley on 7/1/03.

    Volume 26; Issue 2; ISSN: 01470590

    THE REGULATORS: Anonymous Power

    Brokers in American Politics

    by Chicly Skrzycki

    256 pp., Lanham, Md.: Rowman and Littlefield

    Cindy Skrzycki's weekly Washington Post column "The Regulators" has captured the readers' attention for more than a decade, uncovering the power struggles, political intrigue, special interests, and legal battles that go on behind the scenes in Washington. Now, her wit and humor help make the seemingly arcane topic of regulation accessible (and even fun) for readers of her new book, The Regulators: Anonymous Power Brokers in American Politics. Fans of her column will be pleased to see that, like her Post stories, each chapter is humorously illustrated by Keith Bendis.

    The book, punctuated by some of her most interesting and important columns over the years, will make absorbing reading for anyone interested in American politics and regulation. Skrzycki's goal in writing the book was to "take a complicated and sometimes inscrutable topic and make it a comprehensible, important lesson in government," and she succeeds. The six chapters give readers a sense of the ever-present hand of regulation in our daily lives, the people and entities who drive regulatory policy, and the efforts (largely unsuccessful) to reign in the "anonymous power brokers."

    A look inside The first chapter, titled "The Long Arm of the Regulators: The Ubiquitous Regulatory State," contains anecdotes about the people and lobbying behind regulations ranging from the size of the holes in Swiss cheese to what constitutes a "serving size" for breath mints and the legal size of prunes. It also offers more quantitative measures of the extent of regulation, providing statistics on the growth in the number of pages in the Federal Register and the staffing at federal regulatory agencies as well as estimates of the costs of regulation.

    It recounts the interesting history of how the Federal Register was created as the daily compendium of new regulatory activity. The Federal Register Act was passed in 1935 in response to a Supreme Court ruling that chastised President Franklin D. Roosevelt for failing to give adequate notice of executive orders setting petroleum quota allowances. The first annual page count, in 1936, was a mere 2,620 pages. The book notes that it peaked in 2000 at 74,258 pages. (According to Mercatus page counts, the peak was actually during President jimmy Carter's tenure - 87,012 pages in 1980. In President Bill Clinton's last year in office, the page count hit 83,293. After a decline in 2001, the Register climbed again to 80,332 pages in 2002.)

    The chapter also reviews the changing nature of regulation, from the economic regulation that was prevalent in the early part of the twentieth century to the social regulation promulgated by agencies that emerged in the 1970s such as the Environmental Protection Agency and the Occupational Safety and Health Administration. Using two case studies, the National Highway Traffic Safety Administration's auto safety regulations and OSHA's ergonomics rule, the book illustrates how Congress, regulators, and interest groups play a role in the development of new regulations.

    Chapter Two, "The Regulators: Who Makes the Rules, and How Much Power Do They Have?" introduces readers to regulators like Food and Drug Administration employee Robert H. Dick, who spent half a century swirling imported tea on his tongue to ensure it met FDA standards of purity and wholesomeness, or the Federal Communications Commission's Robert Ratcliffe, who monitors the airwaves for offensive material that might violate federal rules. It also highlights the power they hold over the regulated community and illustrates why the jobs are coveted through stories about the Consumer Product Safety Commission, the Department of Labor, and the securities and Exchange Commission.

    The third chapter, "Special Interests: Bending the Will of the Regulators," provides a fascinating behind-the-scenes look at the intense and coordinated lobbying effort that resulted in congressional disapproval of the controversial ergonomics rule issued during the last months of the Clinton administration. The focus of this chapter is on special business interests, but it also discusses Congress's role as a special interest in the regulatory process, and throws in some more obscure examples of regulatory influence (such as a flap over regulations governing the color of doggie treats made from hog penises).

    Chapter Four provides an overview of efforts to reform the regulatory process, from the House Republicans' "Contract with America" to the Clinton administration's "Reinventing Government Initiative." While this overview does not discuss earlier efforts at reform, it highlights some ambitious goals for making regulations and regulators more accountable, and how political realities diluted legislative efforts. It misses an opportunity to illustrate how special interests (including, perhaps especially, many non-profit, so-called "public interest," organizations) with much to lose in a more transparent and rigorous regulatory process, defeated broad proposals for reform. But one column laments (and I believe with good reason), "Americans still don't really know how much federal regulations cost and if the 'smartest' rules are always put on the books... .And that would be useful information no matter who is running the regulatory state."

    This theme of accountability is continued in Chapter Five, which examines the roles cost-benefit analysis and risk assessment have played in the regulatory process. It offers case studies of the recent NHTSA tire safety rule, and the roles the Bush Office of Management and Budget, auto and tire manufacturers, pro-regulation groups, and Congress played in its development.

    The final chapter provides some interesting insights into what to expect for the future of regulation. It discusses the impact the September 11 terrorist attacks, the Enron scandal, and international treaties will have on the regulatory state and concludes,

    After several decades of efforts to deregulate and reduce the role of federal government, the pendulum has swung back toward more government intervention and regulation in key areas such as corporate governance, accounting, and homeland security, though de-emphasizing health and environmental regulation continued apace. In short, in the space of one year there was an unprecedented expansion of the regulatory state.

    All of this is interesting, important, and probably enlightening for lay readers who are not immersed in the daily politics of regulation.

    Slant? Readers should not look to The Regulators, however, for an academic treatment of the theories of regulation or for details of legal or economic principles. Skrzycki does not appear to ascribe to public choice economics, which argues that people matter much less than the incentives they face. While the book does recognize that profit motives drive the business community, and getting reelected drives Congress, it is less cognizant of the business community's incentives to produce safer products, protect workers, and maintain reputation. It also makes no mention of the incentives so-called public interest groups face to expand their funding by publicizing (some might say fabricating) crises. Instead, Skrzycki focuses on the more personal side of regulation: Who are these anonymous power brokers determining the flush mechanisms in our toilets and the color of doggie treats?

    Because the book focuses not on the substance of the rules but instead on the people who make them, it rarely expresses opinions about whether particular regulations are good or bad. The author does, of course, enjoy ridiculing particularly ludicrous ones, but she is more interested in the politics of how regulations are developed than on the merits of the rules themselves. It is disappointing, therefore, that the book is not more even-handed in its treatment of the different groups involved.

    My main complaint about this otherwise engaging book is its slant, which is probably unintentional, as Skrzycki takes some pains to be objective in her reporting. Nevertheless, organizations that espouse classical liberal views, believe in liberty and free enterprise, or are interested in increasing the accountability of regulators to the American public (for example, the American Enterprise Institute, the Heritage Foundation, or Citizens for a Sound Economy) are invariable slapped with a label of "conservative," "pro-business," or in the case of the National Federation of Independent Businesses, "devotedly loyal to the Republican Party." (Cato is always referred to as libertarian.) Yet, pro-regulatory groups who lobby for ever-greater state control over people's lives, such as Public Citizen, the Natural Resources Defense Council, etc., are never burdened with a corresponding adjective. In fact, while the "conservative" adjective is applied unfailingly to organizations to the right of center, I can recall only a few uses of the word "liberal" in the book.

    Of course, this is consistent with what veteran CBS News correspondent Bernard Goldberg observes in his best-selling 2001 book, Bias, but it is disappointing nonetheless in a book that attempts to present a balanced picture of the political process.

    This slant is particularly evident in the third chapter on special interests. While ergonomics is certainly a noteworthy case study, the chapter is likely to give uninitiated readers the impression that "special interests" appear mainly on the side of business at the expense of consumers and average Americans. While it does talk about the counter-efforts of organized labor on the ergonomics issue, it portrays unions to be David to the business community's "powerful, well-bankrolled" Goliath.

    It also examines EPA's decision to force General Electric Corp. to dredge the Hudson River for PCBs. The focus is, again, on GE's lobbying efforts, with much less on those of pro-dredging groups, even though the latter overwhelmed the former (and ultimately succeeded in swaying EPA policy).

    Indeed, the 40-page chapter on special interests devotes only two paragraphs to the power of so-called public interest groups, and even there leaves the impression that, unlike their "business" counterparts who are "paid handsomely," non-profits are "operating on a shoestring." The assumption seems to be that anyone who supports restrictions on the power of regulators must represent business interests and be motivated by profit. Yet, organizations that want to expand regulators' power to restrict individual freedoms are presumed unquestioningly to be motivated by altruistic public interests. This inconsistency is exemplified in a comment about the efforts of Rep. Joseph Knollenberg (R-Mich.) to eliminate the Department of Energy's regulations requiring low-flow toilets. Because toilet manufacturers supported the efficiency standards, his motives could not be attributed to business lobbying. But rather than recognize that opposition to regulation could be in the public interest, the book labels his motivations as "pure self-interest."

    The thesis of the chapter's section entitled "Congress is a Special Interest" is illustrated with a 1997 column on now-retired Sen. Fred Thompson's (R-Tenn.) regulatory reform initiatives, which interfered with regulators' plans. Members of Congress certainly respond to constituents' special interests through oversight hearings and letters to agencies. However, this example appears not to appreciate the legitimacy of Congress' constitutional authority to legislate and its responsibility to guide the regulatory process through legislation.

    Conclusion Despite those weaknesses, the book would provide a good introduction to regulation for an undergraduate political science course or a supplement to a more scholarly/academic treatment. Instructors would probably want to supplement it with background on the constitutionally determined roles of the three branches of government and on the economics of regulation, but it provides a good background on the rulemaking process and the different players involved, and adds color to an otherwise dull topic.

    The regulatory leviathan continues to grow, and crises like the ones discussed in the last chapter will add fuel to its expansion. While regulation may seem like an arcane topic of study, its influence can be felt in every aspect of our lives. It is important for Americans outside the Beltway to understand the scope of regulations, how they are made, and what their consequences are. Cindy Skrzycki's perceptive and amusing new book will help bring this esoteric aspect of American politics within the grasp of lay readers.

    Skrzycki's perceptive and amusing book will help bring this esoteric aspect of U.S. politics within the grasp of lay readers.

    The Regulators: Anonymous Power Brokers in American Politics, by Cindy Skrzycki, is reviewed.