Beating Back The Jungle Of Red Tape

Authored by Ron Shultis via RealClear Wire,

Besides “tax increase,” few terms rile up Americans more than “red tape.” Like a vine or weed that spreads out of control, red tape conjures up visions of a fast- and ever-growing jungle of rigid, excessive, and bureaucratic regulations that bring action grinding to a halt. And these regulations have consequences: The average regulatory cost for a new business in its first year is more than $83,000. Here in Tennessee, it would take an individual spending 40 hours a week eleven weeks to read all of Tennessee’s 114,000-plus regulations, totaling more than eight million words. These regulations ensnare businesses and individuals and deprive us of our freedoms and future prosperity. State leaders must implement broad regulatory reform to ensure no Tennessean suffers from backbreaking regulations and better unleash the state’s economy. 

A regulatory reform agenda will include many layers of improvements. First, make it easier to “count” the number and cost of current regulations. Fortunately, a recently passed law will require all bureaucracies to report by the end of 2023 and every eight years afterwards a list of every regulation on the books. 

From there, state lawmakers should seek to “cap” either the total number or cost of regulations. In Wisconsin, the legislature can require an independent economist to calculate the cost of proposed regulations on businesses and another review after the fact to confirm estimates to cap the impact of regulations on the economy. Ideally, the cap is lower than the current total, forcing leaders to “cut” those that are too onerous or outdated. For the best example of how reducing regulatory burdens can unleash our economy, look to our neighbors in the north: After a poor economic decade in the 1990s, the Canadian province of British Columbia decided to try something drastic. Starting in 2001, for every new proposed regulation, bureaucracies had to repeal at least one regulation — with the goal of reducing regulatory requirements by one-third within three years. The province exceeded that goal, cutting regulations by roughly half. The result was that the province’s economy transformed from lagging Canada’s as a whole to its fastest growing province since 2002.

After adopting a “count, cap, and cut” approach, state policymakers should provide tools to create more regulatory flexibility. Currently few options exist for those just seeking clarity if their business is subject to certain regulations. If an innovative small business wants some guidance on whether regulations apply to them or not, they often must hire legal counsel and go before an administrative law judge, an intimidating process for most. To solve this problem, regulators should be empowered to issue no-action letters (NALs). NALs allow an agency to state that it will not punish a business owner or person if they engage in some action. Without a similar tool, regulators often can only punish a new company who can then appeal to begin the process of working with them. When all you have is a hammer, everything looks like a nail. NALs provide additional tools to regulators to provide the clarity and flexibility people need, especially businesses in a highly innovative world.

Finally, to prevent regulations from ever growing out of hand again, the burden to prove the necessity of new regulations should be on the government. Currently, the burden typically falls on Tennesseans in court to prove a regulation is unduly onerous. If the government is going to impose costs on Tennesseans, it should be on them to prove that the regulation is necessary to protect the public. 

Reforming regulations does make news headlines like tax cuts or recruiting new businesses with taxpayer money. However, if Tennessee lawmakers wish to engage in broad regulatory reform, they will be rewarded. The example of British Columbia shows that while regulatory reform is unlikely to grab headlines, it can transform economies in just a few short years. A holistic regulatory reform agenda will include many layers but with a three-tiered approach, first “counting, capping, and cutting” then providing more flexibility, and then finally shifting the burden of proving new regulations to where it belongs our state’s leaders can beat back the jungle of red tape and unleash prosperity for Tennesseans like never before.