How do you make up your mind about specific issues and policies? Apart from following the opinions of like-minded people in your social circle or the recommendations of some writer or celebrity, who and what informs your decision-making process? Rather than taking an ad hoc approach to policy, we suggest that one develop an intellectual framework based on his or her own ethical, philosophical, and economic values. We also believe that a thoughtful person should have established principles by which to judge legislative proposals. Here are our ten rules for judging legislative proposals.
Ten Rules for Judging Rules
1. Identify a Specific Substantial Problem. What is the problem that the legislation or policy is meant to address? Legislation should not be passed frivolously. The people and agencies enforcing laws ultimately have the authority to take away life, liberty, or property depending on the severity of a crime or violation. Laws are not mere suggestions. Legislation should be passed to address very specific, substantial problems rather than signal virtue or convey sympathy.
2. Tailor the Least Intrusive Remedy Possible. Is the law narrowly tailored to be the least intrusive remedy available? We live in a society subject to countless local ordinances, state laws, and federal laws and regulations. Those laws can be, and sometimes are, abused by those who enforce them. When we agree to be subject to new laws, we should think through whether the remedy is as narrowly tailored to the problem as practical. Government agencies and bureaucrats tend to extend the reach of their own authority. Carefully crafted laws should not delegate any more authority or discretion to agencies than is necessary to remedy the problem at hand.
3. Ask if the Cure is Worse than the Ailment. There’s a theory in economics called “the law of unintended consequences.” The idea is that once a policy is set in motion based on certain assumptions and expectations, a whole host of other reactions take place that often undermine the original purpose and create unforeseen problems. Enacting poorly written legislation will likely result in the passage of additional legislation to address the side effects. Legislation should come with warning labels just like pharmaceutical advertisements. You would not take a drug for a runny nose if it were likely to lead to diarrhea, shortness of breath, and profuse sweating.
4. Identify the Cost and Means to Pay for the Law. The United States already has a massive national debt. Any new discretionary spending will come at the expense of some future project. Of course some problems must be solved regardless of cost. Defeating fascism, ending slavery, or protecting First Amendment freedoms are so crucial that they transcend budgetary concerns.
In addition to asking the cost of a new law, how do legislators plan to pay for the bill? Will the costs be borne out of the general budget, or will new fees, excise taxes, or other measures be enacted? Will the public at-large or end-users bear the cost? For instance, if we build a new National Park, will park visitors’ fees fund the Park? Or if new environmental restrictions are imposed, will polluters bear the cost through penalties on pollution?
5. Analyze Budgetary Expenditures as an Investment. When analyzing a spending bill, ask yourself whether the money allocated for the government spending is a good investment. Is money simply being thrown at a problem? Or is its purpose to prime the economic pump? Should we expect to have tangible results from the investment? For instance, we could allocate one billion dollars to pay people to sweep the streets of Detroit, or we could allocate one billion dollars to upgrading the electric grid. Both would inject one billion tax dollars into the U.S. economy. They would not, however, have the same economic result. The first expenditure would be quickly spent and depleted (because the streets will need to be swept again very shortly). The second expenditure would have lasting value because it would result in physical improvements.
6. Identify the Winners and Losers. Who does the proposed law benefit and harm? Every law will result in some winners and losers. When you hear one group lobbying for or against a law, ask what their interest or financial motivation is. You don’t have to be a cynic or a conspiracy theorist to ask these questions. It is just being prudent.
7. Anticipate the Next Round of Laws to Come. As we discussed before, once laws are made in one area, chances are legislators will go back and add additional laws. If the proposed law is passed, can you foresee additional legislation that will be proposed in its wake? What might the impact of those additional laws be?
8. Consider Whether the Law is Necessary as a Long Term Solution. Will this law or federal program ever end? The answer almost invariably is “no.” Federal programs and legislation typically do not include a sunset provision. Typically laws and federal programs have eternal life. And once laws are in place, modifying them with major reform bills can be very difficult. Consider whether the problem being addressed is a temporary problem or a long term issue that needs a permanent solution.
9. Consider Restrictions on Personal Freedom. Does the law expand personal freedom or restrict it? This is, of course, a trick question. Laws by nature are restrictions. Almost invariably laws restrict freedom of action rather than expand freedoms. When legislators claim a law expands personal liberties, chances are the laws come at the expense of someone else’s rights and freedoms.
10. Compliance and Enforcement. How will government agencies enforce compliance with the new law? Will compliance and policing intrude into privacy or jeopardize other civil rights? Laws are mere wishes if they are not enforced. Each new law means that a government agency will have additional power to meddle in some person or company’s affairs and penalize them for non-compliance. Consider whether proposed compliance provisions within the law would be too burdensome or enforcement too intrusive and punitive.