This blog post is the second in a series outlining the Center for Progressive Reform’s new strategic direction. We published "A Turning Point on Climate" in October.
Watch a 2-minute video from James Goodwin as he explains the regulatory system in an approachable and lighthearted way.
Over the last four decades, small government ideologues have waged a coordinated attack against government. The strategy has paid off: Public approval ratings of all three branches of government are at all-time lows.
Nevertheless, the federal government still manages to get things done on a day-to-day basis, and that is primarily due to the so-called 4th branch of government — the administrative and regulatory state that employs 2 million workers, invests trillions of dollars each year on things like air pollution monitoring and cutting-edge clean energy research, and makes rules that protect us all.
This is not to say that the administrative state hasn’t been the target of conservative attacks, too. These attacks have left federal regulatory system battered, bruised, and starved for resources. Nevertheless, the genius of its design — including such factors as a professional bureaucracy, science-based policymaking, strict transparency measures, and a commitment to public participation — has enabled it to persevere in the face of these challenges.
Simply put, the administrative state makes our lives our better, and we would be better off still if we resolved to strengthening it. We have rules for clean air and drinking water, protections against food poisoning, and an apparatus to implement the newly signed $1.2 trillion infrastructure bill. The administrative state is both the face of government to most Americans (think: roads and bridges, student loans, and Social Security) yet nearly invisible to them (think: “Keep the government’s hands off my Social Security!”).
After laws are passed, it is the administrative state that decides and implements policies. Our 4th branch of government — not Congress or the president — does the heavy lifting of governance, most recently on controversial issues like COVID vaccine approval and vaccination requirements in the workplace. And that is as it should be. Agency personnel are the repository of expertise on the complex issues at the heart of policymaking, and they are well-situated to interface with the public to combine their expertise with on-the-ground knowledge about how policies will work in practice.
Agency expertise has not protected the administrative state from overt politicization. It is one thing for federal agencies and their rulemaking to be guided by the sitting president’s priorities and another thing altogether to disfigure agencies beyond recognition, which defined the Trump era. Trump’s Sharpie war with the National Oceanic and Atmospheric Administration (NOAA) was cringeworthy, but the suppression of COVID infection data and prevention strategies cost hundreds of thousands of lives.
To protect the mission of federal agencies, some advocates seek measures to shield agencies from undue political interference and insulate agency decision-making.
The Inherent Tension in Rulemaking
But there is a tension here. Promoting technocracy in rulemaking can help prevent undue political interference like we saw during the Trump administration, but it also risks shutting out the public’s voice. In policymaking, not all politics is bad.
That’s why here at Center for Progressive Reform, we think differently: Federal agencies and rulemaking should be more accessible to the public, not insulated from the public. Agencies should be more democratic and capable of engaging in the debate and tug-of-war between stakeholder interests, not hidden like an Oz behind the curtain. It’s inherently unfair and anti-democratic that corporate lobbyists have such access to agencies and regulators while the public is all but shut out.
We face current and looming crises in this country — a worsening climate, escalating inequality, structural racism, growing polarization — and we absolutely need the full power of government to address them.
Federal agencies that serve as a forum for collective decision-making — rife with vested interests, trade-offs, and compromise — will serve the common good. Federal agencies that actively seek out and engage communities that are normally shut out of the process, yet heavily impacted by it, will help counterbalance the power of corporate interests.
Regulatory reform is an area that the Center for Progressive Reform knows well. In fact, it’s our raison d'être. Twenty years ago, a group of progressive law professors founded the Center for Progressive Regulation (our earlier name) to resist the attempted rollback of key regulations during the George W. Bush era.
Over the years, we have issued repeated calls for reform and have been singularly influential, for example, in exposing the fallacies of cost-benefit analysis that undergird the decision-making process for proposed regulations. Cost-benefit analysis fails to give weight to the effects of discrimination and inequity and disaggregated benefits and seriously undervalues future generations. It also serves as a barrier that excludes most members of the public from participating in policy decision-making.
Today, we’re facing a once-in-a-generation opportunity to push government to use the full force of its power for good. Alongside our partners at the Coalition for Sensible Safeguards, the Center for Progressive Reform has pressed hard for the Biden administration to “modernize regulatory reform,” and that process is now underway. This is the moment for progressive change. With the prospects of a divided Congress or a Republican in the White House, the 4th branch may be the rock to which progressives cling.
Our Regulatory Agenda
What is our agenda for making the regulatory system more democratic and responsive to the crises of our time?
First, regulatory decision-making must emanate from public participation. Agencies should identify and eliminate all potential barriers to meaningful participation in the development of analyses, especially for people of color and low-wealth individuals. The analysis would be oriented around individuals’ lived experiences, rather than demanding specialized technical expertise as the price for a seat at the table. Making sure that agencies are able to “meet the public where they are” in this manner would require institutional changes, including hiring staff with diverse backgrounds and training in other disciplines and changing the timeline, locus, and stakeholders in decision-making.
Alongside rulemaking, government agencies must also rethink permitting, monitoring, and enforcement. The issues on where to build, how to extract, what can be emitted, and what standards to codify are, first and foremost, local concerns. Involving local people in the regulation of those activities makes good democratic sense.
Whether it’s pollution, hazards in the workplace, or unsafe products, people who experience negative consequences should be our front lines of defense in monitoring and enforcement. We need new types of relations between agencies and communities and new mechanisms to incorporate community action.
More than just community engagement or good government reform, remaking the administrative state is key to the progressive agenda for shifting power from the powerful to those who have been systematically shut out and historically burdened.
As K. Sabeel Rahman, the former president of DEMOS who now serves in the Biden administration’s Office of Information and Regulatory Affairs, commented, “From environmental to workplace safety, to financial regulation, to consumer protection, the modern regulatory state is our primary tool for addressing systemic social and economic concerns.”
Long live the regulators!
Showing 2,824 results
James Goodwin, Minor Sinclair | December 2, 2021
Over the last four decades, small government ideologues have waged a coordinated attack against government. The strategy has paid off: Public approval ratings of all three branches of government are at all-time lows. Nevertheless, the federal government still manages to get things done on a day-to-day basis, and that is primarily due to the so-called 4th branch of government — the administrative and regulatory state that employs 2 million workers, invests trillions of dollars each year on things like air pollution monitoring and cutting-edge clean energy research, and makes rules that protect us all.
Katlyn Schmitt | December 1, 2021
Carbon capture use and storage is at the center of the national climate policy debate, promoted by the oil and gas industry, the private sector, and even some environmental organizations as a solution to the climate crisis. The federal infrastructure package that President Biden recently signed into law appropriates more than $10.3 billion for the nationwide buildout of carbon capture infrastructure. The fossil fuel industry is targeting Louisiana as an emerging hub for carbon capture, mainly because of the large concentration of industrial facilities that emit carbon dioxide in the stretch of land between New Orleans and Baton Rouge. While Louisiana must move quickly and aggressively in pursuit of climate change solutions, deploying carbon capture to reach net-zero emissions is not the answer. A new Center for Progressive Reform policy brief has more on the subject.
Robin Kundis Craig | November 23, 2021
Less than two months after oral argument, in its first interstate groundwater case, the Supreme Court unanimously decided that Mississippi must rely on a doctrine known as equitable apportionment if it wants to sue Tennessee over the shared Middle Claiborne Aquifer. In an opinion by Chief Justice John Roberts, the court squarely rejected Mississippi's claim that Tennessee is stealing Mississippi's groundwater, noting that it had "'consistently denied' the proposition that a State may exercise exclusive ownership or control of interstate waters." As expected, the court's opinion in Mississippi v. Tennessee is short -- 12 pages, half of which recount the long history of the case. Nevertheless, in this first opinion about states' rights to interstate aquifers, the court made three important decisions that are likely to guide future interstate disputes over natural resources.
Robin Kundis Craig | November 23, 2021
Confirming expectations, the Supreme Court on Monday unanimously denied Mississippi’s claim that Tennessee is stealing its groundwater. If Mississippi wants to pursue its groundwater battle with Tennessee, it will have to file a new complaint with the court asking for an equitable apportionment of the Middle Claiborne Aquifer, which lies beneath Mississippi, Tennessee, and other states.
Karen Sokol | November 22, 2021
During a historic hearing before the U.S. House Committee on Oversight and Reform on October 28, the executives of ExxonMobil, Chevron, Shell, BP, and the American Petroleum Institute (API), refused to admit to their decades-long climate disinformation campaign that is now well-documented in publicly available documents uncovered by journalists and researchers. If that weren’t enough, the executives continued to deny climate science under oath, albeit with a slight twist from their previous disinformation campaign. Instead of denying the science establishing that fossil fuels are driving the climate crisis, they’re now denying the science establishing the urgent need for a rapid transition away from fossil fuels. In other words, they’re still lying -- a strategy that was on full display in this blockbuster hearing.
Catalina Gonzalez, Maggie Dewane | November 18, 2021
Despite President Biden’s bold climate commitments at home and COP26, his administration and Congress have much more work to address climate change and to make climate justice a reality.
Emily Ranson, Marcha Chaudry | November 16, 2021
Although vaccination rates continue to rise and coverage on COVID-19 is fading away from prominent news dashboards, our rates are still higher than in summer 2020. While we still adapt to living and working with COVID-19, we must prepare for future public health emergencies so we do not lose another year figuring out our response.
Daniel Farber | November 15, 2021
Our system of environmental regulation divides up regulation of a single substance based on each of its environmental impacts. Thus, the regulatory system sees the "trees," not the "forest." That muddies the waters when we are talking about regulatory priorities, strategies, and long-term goals. It can also lead to framing issues in ways that may weaken environmentalist arguments, since the various harms of a substance or activity get fragmented into different silos. Fossil fuels are a case in point.
Richard Pierce, Jr. | November 11, 2021
Effective climate change mitigation depends critically on the ability to substitute electricity for gasoline as the primary transportation fuel and to substitute carbon-free fuels for fossil fuels as the country’s primary source of electricity. But the nation’s electricity transmission grid is woefully inadequate to accomplish these important tasks, and the U.S. regulatory system renders it impossible for regulators and clean energy advocates to implement the necessary expansion of grid capacity. Most sources of carbon-free electricity are located a long distance away from the places where most people live and work. Studies indicate that the United States can provide carbon-free electricity to major population centers only by adding transmission lines to the grid.