A Bad Idea Inside and Out: Dissecting a British Regulatory Scheme in the American Context
As myriad proposals for reforming the American regulatory system churn through Congress, at least one senator has chosen to look across the Atlantic for inspiration. Unfortunately, the British "one in, one out" regulatory scheme would not travel well. In fact, enacting such a regulatory scheme in the United States could undercut the public protections on which all Americans depend.
On its surface, the system sounds simple enough: under "one in, one out," federal agencies would be required to rescind an existing regulation before they could issue a new one "of the same approximate economic impact." Sen. Mark Warner (D-VA) has referred to "one in, one out" as a "regulatory pay-go" system because it centers on the idea that regulations should be measured by the compliance costs paid by businesses.
At base, regulatory pay-go is predicated on a belief that the economic recovery is being held back by outdated, overly burdensome, and duplicate rules. However, the results of the Obama administration's retrospective review of existing regulations demonstrated that agencies could identify relatively few examples of rules that fit this description.
Warner frequently refers to the British experience with their "one in, one out" system as a reason to believe that regulatory pay-go would be successful in improving the American regulatory system. However, experts on the British system suggest that the analogy is not precise.
Jitinder Kohli, who led the United Kingdom's Better Regulation Executive from 2005 to 2009, told the Senate Budget Committee that "international comparisons in this area are difficult. Not only is the institutional context different . . . [b]ut we also have a very different regulatory culture with broad, bipartisan acceptance of the importance of regulation in safeguarding the public at large." Moreover, the "one in, one out" system was enacted under a government-wide effort to "find ways to simultaneously maximize regulatory protection while minimizing unnecessary regulatory burden." This stands in obvious contrast to the struggle between the anti-regulatory zeal of America's conservative politicians and major corporations and those who seek to preserve our system of public protections.
Britain's "one in, one out" system is administered by a central governmental body. Agencies that wish to issue a new regulation submit an analysis of the regulation and the one they suggest be scrapped for this central body to consider. That central body can take weeks or months to consider whether the agency's analysis is correct and whether the offset is appropriate. In the meantime, the newly proposed safeguards cannot be enacted – meaning that more than one hundred regulations that have been issued by British regulators and would otherwise be protecting people against acknowledged hazards have not yet taken effect, illustrating that the system is far from perfect.
Keeping our food free from pathogens, our air and water free from pollutants, and the things we buy and places we work free from hidden dangers are things on which all Americans should be able to agree. We should also be able to agree that we should not have to trade away or wait for these safeguards, under regulatory pay-go or any other system.