Opinion: Bureaucracy and its regulations are not an enemy

There is a natural, useful tension that develops
U.S. Capitol building.
U.S. Capitol building.

Before we permit words like “bureaucracy” and “regulation” to wrongly and permanently become pejoratives in our lexicon of government terms, it might help to have a fuller understanding of these two state and federal institutional constants.

Professionals and the pols

What is commonly referred to — often in a disapproving way — as “the bureaucracy” actually is the product of major reforms of government instituted more than a hundred years ago.

Theodore Roosevelt, among other progressive politicians of that era, developed the civil service systems in both New York and Washington, D.C., to professionalize the work of government and greatly reduce the opportunities for conflict of interest and corruption that were rampant under the “spoils system” then in place.

To this day, it should not be lost on any keen observer that where corruption is alleged or been proven to exist in government, it has rarely if ever been found within the civil service system.

There, employment is secured through objective examinations and typified by subject area expertise with myriad specific technical specialties.

Clearly, a certain depth of knowledge is obligatory within state and federal governments that deal with an increasingly complex technologically sophisticated economy and society.

There is a natural and useful tension that develops between these long-term committed professionals on the one hand and the more temporarily appointed or elected politically aligned officials that oversee them and ultimately decide on what policies and programs should be pursued.

The two ends of this fulcrum each represent the interests of the public, but in differing important ways.

The public wants its elected officeholders to be responsive to its demands. At the same time, though, it has a crucial interest in those responses being informed by objective policy analyses of multifaceted matters that accurately assess the costs and benefits of those decisions.

We are seeing this tension playing out in the nation’s capital now between the new political leadership and civil servants in several agencies, ranging from the intelligence services to educational professionals and environmental scientists.

The truth about rule making

Some seem to think that regulations simply spring forth in some whimsical fashion.

In fact, it takes considerably more effort and process for a federal or state agency to create a regulation than it does for Congress or the state Legislature to pass legislation.

Recent local experience with casino licensing serves as an apt illustration. The law legalizing new casinos passed readily; the regulations and subsequent processes to site and authorize them took well over a year to finalize.

Regulations only carry out legislative intent. Without laws authorizing an agency to create rules, there can be no regulations. Agencies simply can’t create them solely on their own authority.

Typically, a law is more general in nature and rules are required so that those affected by the law know who, where, when and how to comply with it.

The regulatory process is a public one and enormously detailed, normally taking many months or occasionally years to complete.

It begins with an agency proposing a rule by publishing its text, along with an explanatory justification and an invitation to any interested party — including individual citizens — to submit opinions and comments, whether agreeing or disagreeing, with the proposal.

The initial comment period often stretches for several weeks.

Once it closes, what follows is another period of several weeks where further comments responding to the initial comments of others are invited.

If the agency deems it necessary or useful, it may set up one or more public hearings to gather further information.

In this way, an exhaustive written record is developed that culminates in a report that details all of the comments received.

The agency may amend the regulation to reflect aspects of that record and explain in the report why it is choosing to pursue one direction rather than another.

Depending on public interest or the complexity of the matters under consideration, there may be one or several further opportunities for comments and replies before the agency makes a final decision on the regulation’s form and whether to put it into effect.

Even once put into effect, a regulation still is subject to judicial and legislative review. Furthermore, the state Legislature and Congress recently have added even more steps to the process and additional ways for a regulation to be derailed.

Clearly — and contrary to often popular belief — promulgating a regulation is a painstaking and thoroughly public process.

None of this is meant to say that a bureaucracy can’t get too large or that regulations can in no way become overbearing.

But if one is concerned about “fake news,” then he or she should be just as troubled about its enabling companion — the false impression.

If the bureaucracy or the regulatory process is to be reformed, at the very least it shouldn’t be done under false pretenses.

John Figliozzi is a regular contributor to the Sunday Opinion section.

Categories: Editorial, Opinion

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