President Donald Trump stood in front of two piles of paper last month. One was the current Code of Federal Regulations, he said; the other was the code back in 1960. Using a pair of golden scissors, Trump cut a piece of “red tape” connecting them.
The pages were blank, and the piles weren’t exactly precise, but the message was clear: Government regulation is out of control, and we need to cut down on it.
This is a familiar talking point for politicians on both sides of the aisle: We started our season of “The Uncertain Hour” with President Jimmy Carter railing on the 100,000 pages of documents it took to regulate peanut butter. During the 2016 campaign, Ben Carson said all the pages of regulations from the previous year would be three stories high. A few years ago, Senate Majority Leader Mitch McConnell stood in front of a tower of paper he said represented all the rules around Obamacare. We could go on.
But all this page counting is more than a waste of paper: It’s a misrepresentation of how the federal government crafts regulations and the burdens they pose.
“It’s an easy target because they're not elected, and nobody really knows what a bureaucracy does,” said Jennifer Selin, a lawyer and assistant professor at the University of Missouri’s Kinder Institute on Constitutional Democracy. “But it's a little bit more complicated than politicians make it out to be.”
Since the '60s, Congress has passed environmental regulations, financial reforms and other really meaty, complicated legislation. Lawmakers delegated a lot of the authority to implement those laws to agencies. The resulting regulation could be one sentence long and have more impact then something much longer. While special interests can and do try to influence those agencies, it would take congressional action to take regulatory power away from them. This arrangement benefits elected officials, Selin said.
“Then if things don't go right, it's easy to blame them,” Selin said of the bureaucrats, “And you as a congressman look pretty darn good: ‘We'll get to the bottom of it.’”
But plenty of stump speeches of regulations don’t even rest on — or stand in front of — the Code of Federal Regulations itself. Instead you hear a lot of talk about the Federal Register.
Established in 1936, the Federal Register contains final rules, as well as proposed rules and all the notices and comments that come with them.
The conservative think tank Competitive Enterprise Institute has reported breathlessly on how many pages President Barack Obama added to the Federal Register — “We don’t need a pen and phone, we need a meat ax” — compared to more modest additions under Trump.
But what does that page count tell us about regulations? Next to nothing, according to Rachel Augustine Potter, an assistant professor of politics at the University of Virginia.
Agencies are required to publish many pages even if they’re undoing a rule, and controversial regulatory moves can generate tons of pages that aren’t the rule itself. Then there's the pages that aren’t rules at all, Potter said. There are meeting notices, disclosures and other documents that transparency laws say must be in the Register.
“I don't want to call it junk, but it's not regulation by any stretch of the imagination,” she said. “It's sort of like the daily digest of your federal government, which very, very few people choose to read.”
A Congressional Research Service study found that in 2015, less than a third of total pages in the Federal Register were about rules and regulations, and the number of final rule documents published in the Register has declined since the '70s. When you winnow down to “major” rules, it’s usually less than 100 per year.
So why do politicians rely on the Federal Register to make a point about regulatory burden? In short, because it’s easy, Potter said.
“I think it's just convenience. You can have your staffer spend the afternoon figuring out how many pages are in the Federal Register,” she said, and in fact you can find the annual additions with a quick Google. “When you look at the CFR, you know, how recent is the version you're looking at online? How do you count what new text versus the old, and what’s a good way to measure that? It’s just a lot harder.”
Outside of the convention stage or campaign appearances, officials at the Office of Management and Budget measure the impact of rules regularly, and prior administrations have worked to reduce the paperwork burden from regulations.
It’s a worthy goal, Selin said. She’s certain there are plenty of regulations on the books that aren’t enforced or conflict with each other. We’ll talk about some of those on the next episode of “The Uncertain Hour.” The resources it would take to comb through that huge pile of pages to find and scrub out those regulations would be “astronomical,” Selin said.
“Which then would potentially cause another problem,” she said. “You’re growing the bureaucracy to get rid of it.”