Debating the Independent Retrospective Review of Regulations

Advocates and critics of regulation make familiar but competing claims. Either regulations hamper economic growth, or their inadequacies contribute to economic failures. Either regulations stifle innovation, or they are needed to keep us safe. Of course, all of these claims could be at least partly true, at least with respect to specific types of regulation or different types of public problems. But so far, authoritative answers have remained far too elusive. Calls for looking back to determine regulation’s positive and negative effects have grown over the last several years. One salient concern centers on the problem of keeping bad regulations on the books. Another focuses on the cumulative burdens created when new rules are piled on top of existing rules. For at least the last couple of decades, Presidents have attempted to address the problem of regulatory accumulation through executive action calling upon government agencies to review and evaluate the efficacy of their existing stock of rules. The current administration, for example, has launched a major regulatory “lookback” initiative. More recently, some members of Congress have started discussing possible legislation that would establish a new, independent commission dedicated to the retrospective review of regulations. Such a commission would help determine whether certain existing regulations should be repealed. The most recent of these legislative proposals is called the “Searching for and Cutting Regulations that are Unnecessarily Burdensome Act” – or the SCRUB Act. Although just a draft bill that has not yet been formally introduced in Congress, the SCRUB Act has already been debated in a legislative hearing convened in February by a House subcommittee. Furthermore, in the House and the Senate similar bills have been introduced that would create a “Regulatory Improvement Commission” to investigate whether certain existing rules ought to be repealed. How wise are these legislative proposals? Should an independent commission be charged with determining if specific regulations should be “scrubbed?” In this series, The Regulatory Review brings together a varied group of commentators who debate the desirability of an independent process for retrospective review of regulation. The series features essays on the SCRUB Act model. Taken together, the essays lay bare a full range of viewpoints. The authors represent virtually every side of the debate: those who support the SCRUB Act; those who favor the general approach but see better alternatives; and those who oppose altogether to the idea of charging an independent entity with the task of reviewing and “scrubbing” existing regulations. We begin by featuring the case for such independent review, and then we follow with commentary against the SCRUB Act and its general approach