The continuing need for research on the cumulative impact of regulation breeds opportunities.
When we attempt to measure the cumulative impact of regulations in the United States, we do so to better understand how regulations collectively burden and benefit the American public. Unfortunately, most of our efforts to better answer these questions are at best imperfect and at worst misleading. In a recent paper, I try to catalog efforts to measure cumulative regulatory impact and suggest some ideas for doing so more effectively.
One fundamental problem with most attempts to measure cumulative impact is that the researchers who undertake them are either explicit about their own views that regulations are too burdensome or work for institutions with that point of view. Regardless of the merits of regulatory impact analyses, concern about anti-regulation bias can automatically subject these efforts to criticisms from those who support regulation. And some of those criticisms are merited. Often, however, criticisms quickly morph into a hostility toward the entire enterprise of measuring the total impact of regulations.
I believe that measuring the cumulative impact of regulations is important for several reasons.
First, understanding cumulative impacts is critical to understanding how individuals experience the regulatory state. Whether it is the small business owner who must comply with overlapping federal, state, and local regulations or the individual who must spend hours each week filling out forms to get benefits to which they are entitled, the cumulative impact of regulations matters immensely to those burdened by their requirements. Cumulative benefit also matters—the same people who breathe cleaner air because of regulation may also be protected from financial fraud and may be less likely to eat contaminated food because of regulation.
Second, counting regulations and measuring regulatory impact can tell us something meaningful about the impact of political leaders or changes to the regulatory process. It was through counting regulations that Cary Coglianese, Natasha Sarin, and I recognized that the Trump Administration cumulatively did very little to reduce regulation despite its claims to the contrary. The same analysis can be used to evaluate the effectiveness of regulatory reforms such as the requirement that agencies eliminate two new regulations for any new one they implement.
Finally, failing to measure cumulative impacts means poorly performed estimates go un-rebutted. Numbers have power in debates over public policy. And if decision-makers and the public hear that there are thousands of regulations or billions of dollars in annual costs, that will affect decisions about whether to embrace policies that make issuing regulations harder.
Attempts to measure cumulative impact currently fall into one of two categories. The first is counting up documents in the Federal Register, pages in the Code of Federal Regulations (CFR), prescriptive words in the CFR, the number of “significant regulations” as specified by the Office of Management and Budget, or entries in the semiannual Unified Regulatory Agenda. These measures can tell us about trends over time. But even at their best, none of them get at regulatory impact and in isolation can be misleading. Are 1,000 regulations issued in a year too many? Or not enough?
The second set of measures attempt to address these questions by aggregating the estimated costs and benefits of individual regulations. These are much more effective measures of regulatory impact. Unfortunately, however, too many agencies issue economically significant regulations but estimate only costs or—as is often the case for independent agencies’ regulations—estimate neither benefits nor costs.
How can we improve our understanding of cumulative regulatory impact? I have two suggestions. The first is to take advantage of the increasing technological sophistication of large language models. Researchers have used large language models to analyze the CFR, but larger datasets exist beyond the CFR. Under the Paperwork Reduction Act, all agencies submit approval requests to the Office of Management and Budget whenever they want to collect information from ten or more people. These requests are accompanied by supporting statements that detail the burden of the information collection and the benefit of the information.
These submissions are all online. They are imperfect to be sure—agency estimates of burden are problematic and their descriptions of benefits may be cursory. But to my knowledge the submissions have never been examined thoroughly. Their examination could produce both aggregate data and data on particular industries or individuals in geographic areas.
The second suggestion cuts in the opposite direction of research. Regulatory impact has always been seen as a quantitative exercise. This has led to a dearth of qualitative data about regulatory impact. Studies of how individual businesses comply with federal, state, and local regulations could help explain how business and individuals experience regulation. Studies focused on disempowered individuals, including the administrative burden they face and how regulation benefits them, could also be useful.
Neither of these methods is perfect. But the study of the cumulative impact of regulations in the United States is both an understudied and easily demagogued issue. Its examination should not be limited to those who want to see less regulation.
