ILMA Compoundings August 2018 - 32

COUNSEL COMPOUND

La Trahison des Clercs,
Part Deux
By Jeffrey Leiter

am frequently asked by ILMA members,
"What is it like these days in Washington,
D.C.?" My typical response is that Elisabeth Kübler-Ross' five stages of grief (denial,
anger, bargaining, depression and acceptance),
which postulates a progression of emotional
states after the death of a loved one, remains
a pretty good shorthand explanation of the
mood here some 18 months after President
Donald Trump's inauguration.
Many "policy wonks" in the nation's capital
are still a long way from "acceptance." A case
in point is the Environmental Protection
Agency's (EPA) recent proposal to ensure the
regulatory science underlying the agency's
actions is fully transparent, and that the
underlying scientific information is publicly
available in a manner sufficient for independent validation. On its face, the proposal is
consistent with the scientific community's
moves toward increased data sharing to
address the "replication crisis" - that is, the
growing recognition in the scientific community that a significant proportion of published
research is not reproducible. However,
critics in the environmental "establishment"
jumped on the EPA's proposal as the latest in
a long-running campaign by the industry to
sift through the raw data of epidemiologists
and other scientists whose work could affect
environmental regulations.
The EPA also is in the early stages of
developing a regulation on how it considers
costs and benefits when making regulatory
decisions. Most EPA-related statutes refer
to the calculation of costs and benefits, but
implementation has been inconsistent, and
many regulated entities complain that the
agency routinely inflates the benefits and
underestimates costs of its regulations in order
to meet the current administration's political
agenda. While the specifics of this rule need
to be hashed out in the coming months, the
potential is there to curb the distortions that
mask bad policy decisions. Critics who do not
want to see wishful bureaucratic thinking go
away are playing up former EPA Administrator Scott Pruitt's ethical lapses as a means to
torpedo real regulatory reform.

AUGUST 2018

| COMPOUNDINGS | ILMA.ORG

Watching these battles over regulatory
reform reminded me of my article in
Compoundings' Legal Ease column a few years
ago referencing Julien Benda, a French philosopher, whose 1927 La Trahison des Clercs (the
treason of the clerks or intellectuals) indicted
Europe's scientists, economists and intelligentsia for "selling out" to ideology, political
party and opportunism. Benda predicted
World War II in his book as he criticized those
intellectuals for abandoning disinterestedness
to justify power grabs by the socialists, fascists
and nationalists. We see happening now what
Benda warned about - the pursuit of power
or advantage in an effort to be declared the
"winner" in abandonment of doing what is
right.
Let's face it, regulation by government at
every level defines our daily existence. We see
it in education, employment, health care, and
the products and services we buy. Regulation
tries to govern what we say or write. Most of
us support the policy objectives that underlie
such regulation, including clean air and water,
a protected environment, a safe workplace,
affordable housing and health care, tolerance
and so on. However, the regulatory system to
pursue these and other laudable objectives is
so pervasive, expensive and complex that the
cost to comply with government regulation is
estimated at $2 trillion per year. Government
regulation is a "hidden tax" that results in
higher prices, smaller paychecks, reduced
benefits and lost employment opportunities.
On a per capita basis, each American household pays about $15,000 on an annual basis
because of this "hidden tax."
Perhaps I am naïve, but harkening back
to Benda: What happened to disinterested,
expert policymakers - schooled in the social
sciences, law, public administration and other
disciplines - operating outside the realm
of politics and exercising their professional
judgment to remedy issues that warrant their
attention?
I see three ways in which our regulatory
system has become derailed. First, policymakers, particularly on the Hill, incorrectly assume
that market-based arrangements and decisions
based on those arrangements by private parties

routinely misallocate resources. Second, the
policymakers then improperly believe that
they alone are capable of formulating directives they see as correcting the private ordering
of the market and are better at optimizing
the allocation of limited resources. Lastly, the
policymakers mistakenly separate individual
welfare from the welfare of society as a whole.
There is a lot of scholarship in and research
on regulatory issues, including
regulatory reform. Various colleges and
universities train students to understand the
effects of regulation and ensure that regulatory
policies are designed in the public interest.
Somehow, political bias and personal self-promotion always creeps back in.
So again, when I'm asked "how are things"
in Washington, there is a story to be told.
While I would not yet call it "draining the
swamp," the Trump administration is having a
noticeable effect on the administrative process.
While the difference was maybe the messenger
(e.g., Pruitt), we have since seen the promotion of best practices for regulatory analysis,
including improved cost-benefit analyses,
regulatory risk assessment and competition
analyses. We have seen better efforts to focus
on outcomes and the alignment of public and
private interests.
In the world of federal regulation, the
past 18 months is too short a time to judge
President Trump's promise of reversing
decades of regulatory overreach. While he
has succeeded in slowing regulatory output
from Washington, hopefully we have seen the
high-water mark of the regulatory state that
has impacted America's entrepreneurial spirit,
productivity and economic growth. Early in
his book, Benda wrote, "Our age is indeed the
age of the intellectual organization of political
hatreds." It might be crass of me, but even in
this postmodern world, Benda's analysis seems
to describe the swamp that is Washington.
Leiter serves as general counsel to
ILMA, representing the Association
since 1981. He may be reached at
202-466-6502 or jleiter@bmalaw.net.

http://www.ILMA.ORG

ILMA Compoundings August 2018

Table of Contents for the Digital Edition of ILMA Compoundings August 2018