To accomplish this, federal agency managers will have take a new approach to how they look at the regulations they impose on industry, says Jerry Ellig, a research fellow at the Mercatus Center at George Mason University.
As someone who has studied the art and science of regulations, Ellig waxed nearly poetic to the Federal Drive about the federal landscape. “It’s a thousand acre garden that needs to be weeded, and in a lot of cases we’re not even sure what kind of crops we’re growing! The executive order is a good idea because we ought to know if regulations are accomplishing their intended results and we ought to know what that costs our society,” said Ellig.
The best approach, suggested Ellig, would be to go back to the beginning.
“The first thing a manager should do is, I think, set up a program to actually do real retrospective analysis of regulations,” he said. Ellig noted many agencies are already doing that. He said that when the Government Accountability Office looked across government and “found that agencies often look at how they implemented a regulation or how they enforced a regulation, but they rarely evaluate the ultimate results for the public or the costs, and those are the two most important things that we need to focus on if we want to figure out whether a regulation is out-moded or whether it’s wasteful.”
Ellig said agencies are already required to do analysis of regulations when proposed and that there are “pretty good guidelines” on how to do that. Since the knowledge of how to analyze a program before it starts, “it ought to be possible to take the same type of approach and the same type of questions agencies are supposed to ask when they enact regulations, and go back and say ‘alright, now that this has been in place for a few years, let’s put together an analysis that answers these same questions… to find out what actually happened. Did it produce the outcomes of value to the public that we expected it to produce? Did the regulation actually solve the problem that we were trying to solve? What did it actually end up costing to enact this regulation instead of what did we predict ahead of time?'”
Analysis on the front end, said Ellig, ought to provide a good framework for reassessing the regulation a few years later.
The second part of a retrospective analysis, said Ellig, is to include all the stakeholders in the process. Often, when agencies ask for public comment after a program has been put into place, not too many people reply. “We need some type of a new approach to generate information and ideas about regulations that need to be revised,” said Ellig.
Above all else, the goal of the analysis should be to get the facts, said Ellig, “and it’s really difficult for analysts to do that when they’re in a situation” of perhaps having to criticize their own boss for decisions made earlier.
A possible solution to the lack of communication and potential political discomfort, suggested Ellig, would be to establish an independent commission outside the agency to do the analysis or to task the GAO for the job.