Regulation, Justice, and the Common Good
I can still remember my first-ever purchase as a boy. I can’t recall where the forty dollars came from, but I had scrimped and saved with one goal in mind: a black, full-faced snowmobile helmet from Canadian Tire. And I can still remember noting a sticker on the helmet that I thought defaced its pristine dark gleam. It was a certification decal from the Standards Council of Canada indicating that the helmet was an approved way to protect my noggin. My first thought upon seeing this was far from gratitude: I peeled it off immediately.
Agencies like the Standards Council of Canada and the U.S. Consumer Product Safety Commission are organizations we love to hate. They can seem like the very embodiment of an overreaching nanny state, putting their grubby regulatory fingers on everything from the fabric of children’s pajamas to the welds on our hockey facemasks to the flow of water through our toilets. Enough already!
But then step back and ask yourself: would you really want to live in an unregulated world?
This is why we should care about regulation: because it is the banal way that the modern, liberal, democratic state tries to secure some baseline of justice and flourishing. Government regulations are one of the sorts of “nuts and bolts” that hold together the girders of our social architecture—and are best complemented by other sorts of “regulations,” such as social mores and cultivated virtues But when we think “regulation,” we generally picture government oversight.
Even if we grant that licensing and state management of commerce have in some ways run amok, we can still witness tragedies and injustices that result from a lack of regulatory protections. As my colleague, Brian Dijkema, noted in the wake of a 2013 factory collapse in Bangladesh, the tragedy was in no small part the result of weak social infrastructure. The challenge is to be able to both critique a choking regulatory Leviathan and still affirm the good of regulation as an institutional expression of care for our neighbor. For every overreaching, micromanaging tentacle of the state that wants to mediate every form of social transaction there is the unnoticed, taken-for-granted inspector or regulation that is preserving health, safeguarding fairness, or even saving lives.
This is a tough sell in our libertarian age in which knights errant of the unfettered market line up to slay the dragon of regulation that threatens to burn down the economy. (Are there dragons in Atlas Shrugged?)
But the problem isn’t regulation; the problem is bad regulation. Even those who demonize regulation as a “job killer” are dependent upon—and should be grateful for—the regulations that let them eat their breakfast without thinking about it, or drive across bridges without giving it a second thought. This parallels David Foster Wallace’s insight in an essay on Wittgenstein: every argument for solipsism avails itself of the shared, communal reality of language. Every jeremiad decrying the negative influence of regulation avails itself of social structures and agreements that are secured by regulation.
Ultimately, good regulation fosters trust, allowing us to proceed with confidence throughout our day. Our children can go to sleep in homes whose wiring won’t catch fire; we awake to eat a breakfast that is safe and healthy; we fly on planes that are well maintained; etc. Good regulation works under the radar and behind the scenes, protecting society, fostering flourishing, looking out for the common good—the sort of low-grade justice that we don’t often think about.
But that doesn’t mean there isn’t a host of issues and questions about regulation that do require reflection. This is where Cass Sunstein comes in. Valuing Life grows out of his tenure (2009-2012) as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA)—an office, Sunstein strategically emphasizes, that was established by President Ronald Reagan to review and approve federal rules from executive agencies “after careful consideration of costs and benefits.” But from the very beginning, Sunstein shows that at issue here is not just a set of bureaucratic algorithms; all of this is really about people:
Governments should focus on the human consequences of their actions. Whether the decision involves environmental protection, occupational safety, smoking, foreign aid, immigration, gun control, obesity, education, immigration, or military intervention into another nation, they should ask, What would be the effect of acting or of not acting? If lives would be saved, how many? If people would be burdened, by how much, and with what effects? And who, exactly, is being helped, and who is being hurt?
We might summarize this in a quasi-biblical trope: Regulation is made for people, not people for regulation. These aren’t easy questions, and no one will agree with all of his answers, but there are at least a couple reasons why his analysis and argument should interest non-governmental actors and non-specialists.
Behind the Curtain
First, and at the very least, Sunstein’s insider account in the early chapters gives us a glimpse into the unbelievable complexity of the modern nation-state and the wide array of expertise needed to govern. This alone should make us skeptical about any sort of simplistic discussion of “government”—even more so, any simplistic demonization of “big government.” Any citizen would profit from this peek into worlds that are otherwise distant and hidden from us. In this respect, reading Sunstein’s book recalled my experience reading Tragedy in the Commons, Alison Loat and Michael MacMillan’s book on the inner-workings of the Canadian parliament: I would constantly remark to myself, “Huh: so that’s how it works.” Indeed, both books could have been subtitled: “How Government Works (or Doesn’t).”
Second, Sunstein gives us a peek into the way government agencies work and the processes by which they come to decisions about rules and regulations. While legislatures effect law, government agencies and ministries (which are not directly accountable to voters) are custodians of a lot of the policies and rules that affect how we live. Think tanks (as well as companies, industries, or advocacy groups) interested in shaping public life, then, should not only be focused on the legislative branches of government; we should imagine these executive agencies as an audience for our arguments and analyses.
In this respect, Sunstein’s behind-the-curtains look at how such agencies collect information, convene conversations, and reach their conclusions could be profitably read by think tanks as a “how to” manual for navigating what might otherwise appear to be a labyrinthine process. “OIRA has an open-door policy,” he emphasizes; “It accepts all comers. If affected companies want to come in person to make an argument for or against a draft rule, OIRA is unquestionably available. The same is true for public interest groups, state and local governments, and members of congressional staffs.” Sunstein sees this as an example of Amartya Sen’s ideal of “government by discussion.” We should also be encouraged that there are channels for public input and contribution—and then take advantage of them. If we feel our voice isn’t being heard, could that be because we’re not benefiting from existing opportunities?
Transparency, Management, and “Epistemic Capture”
Sunstein’s almost journalistic account of bureaucratic process is laced with a philosophical reflection on the nature of knowledge and the challenges of administration that should interest managers and leaders in almost any kind of organization. As just noted, OIRA’s open-door policy is meant to encourage government “by discussion.” The process depends on meetings and input that can be easily scheduled by the public. But as a result, critics and skeptics worry about a “squeaky-wheel-gets-the-grease” dynamic. This is especially true since “businesses and others subject to regulation arrange a strong majority of meetings, and public interest groups arrange far fewer.” As such, “those who oppose such actions, or seek to scale them back, meet with OIRA far more often than those who support such actions.” The worry is what Sunstein calls “epistemic capture”—that the deliberations of the organization will be “captured” by the loud, persistent voices of interest groups who dominate the conversation. This would be akin to what Russell Harden calls a “crippled epistemology” in which everything an organization hears is extreme, severely affecting its perception of the situation and its sense of the range of options available.
Sunstein grants that this sort of distortion is possible, but doesn’t seem to adequately appreciate how such a process could be hijacked by those with the wealth to spend on “input.” Sure, there might be an “open door” to input, but in a sense it costs money to walk through that door. At the very least, it requires making it to D.C. But more substantively, it requires research and data to contribute, which also cost money. And it requires staff who have the wherewithal to pull the levers of this democratic process. All too often crony capitalists are more than happy to take advantage of regulatory processes to secure their dominance over a market. Sunstein gives passing credence to this worry only to dismiss it.
But his constructive responses to these criticisms are still instructive for all kinds of organizations. First, the benefits of such a process outweigh the risks. The risk of “epistemic capture” attends the open-door policy that invites public input—and that is not something we can afford to lose. It is one of the ways that government (and organizations more generally) admit and make up for their lack of omniscience. “It remains true that helpful meetings can matter, especially when people outside of the federal government have information that public officials lack.”
Second, he points out that, given OIRA’s open-door policy, the agency can’t be held responsible for the asymmetry of meetings and access. However, he cautions that quantity of meetings need not—and does not—constitute a kind of knowledge. In other words, an organization’s hearing the same thing over and over again is not the equivalent of gaining more and more knowledge precisely because nothing new is really learned in the accumulation of such meetings. “Some meetings have no effect at all,” he points out, “because the presentations supply no new information. […] Sometimes presenters offer the equivalent of enthusiastic support or extreme skepticism, not so different from loud applause or sustained hissing. Because support and skepticism are rarely informative, and almost never surprising, such meetings do not have any impact on actual decisions.”
Healthy organizations—including healthy bureaucracies—will be those that sift out what truly counts as informative knowledge as a basis for decision-making. This requires filtering out both mere enthusiasm and mere opposition, and resisting the tyranny of either majority who simply parrot more of the same.
Of course, a significant part of Sunstein’s argument involves the nuances of cost-benefit analysis and the distinct challenge of “valuing” life—as in, how does government evaluate the cost of (non)regulation when assessing the risks of loss of human life? How much is a life worth? While we might immediately cringe at the utilitarianism of such a question, the burden of Sunstein’s argument, in the spirit of Mill’s critique of Bentham, is to move beyond a crass monetization to consider a range of goods and values—what he calls “quantification without monetization.” And he constantly emphasizes that what’s being “valued” is not life per se but rather what costs people are willing to bear for certain kinds of risks. The latter half of the book is a complex analysis of the interplay between the “value of a statistical life” (VSL) in light of what people are “willing to pay” (WTP) to avoid such risks, recognizing two forms of variability (“across risks and across persons”) all in light of a commitment to “prioritarianism” that emphasizes the importance of protecting the least well-off. More specialized readers will be especially interested in this part of the book.
But for the rest of us, I think the real upshot of Valuing Life is to appreciate not just the incredibly complex task of administering the common good, but to reconsider the role of regulation as a matter of justice. Sunstein is surely right that “[w]e need to go beyond the ‘more or less’ debates about regulation—in which people argue abstractly over whether we have ‘too much’ or ‘too little.’ We need to focus instead on how to trade off the costs of action and the costs of inaction. We need to focus directly on the human consequences of the alternatives.” Of course, that still leaves a lot to talk about. But it’s a conversation worth having—and one we should all be invested in.
While we rightly decry an overreaching, monopolizing state, along with the people in Bangladesh we can also lament the absence of a protective state. Every once in a while it’s helpful to step back and thank God for bureaucracy.