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by jon l. shebel
Who Needs Laws
When You’ve Got Rules?
Legislators seem to be
magnets for more than their share of the cynicism that swirls around the governing class,
perhaps because they attract so much attention but remain rather unphotogenic. After all,
aren’t the most enduring images from each legislative session those that punctuate
its messiness?
But the next time your heart is
filled with disgust at those publicity-seeking, money-grubbing, interest-group-pandering
political creatures we call lawmakers, you might want to stop to ponder the question: And
the alternative is?
This month’s cover story is
about a process called rulemaking, which some would like to see supplant the process
called lawmaking. As you will find in reading the article, unlike the constitutional
regime with its checks and balances, there are no similar reins on government power in the
federal rule-making regime.
The threat embodied in the shadow
government of the cover story is easy to underestimate. It is a slow, steady,
drip-drip-drip erosion of freedom that converts individual liberty into government power.
The transfer is accomplished one small, barely noticeable piece at a time.
The accomplices to the assumption
of power by the unelected are the members of the federal judiciary and sometimes the
federal lawmakers themselves. The Equal Employment Opportunity Commission and the
judiciary have turned the Americans With Disabilities Act into a law that designates
oversleeping as a disability, thereby protecting chronically late employees from
discipline.
The Office of Civil Rights and
the judiciary have turned the anti-discrimination provisions of Title IX into a vehicle to
shut down men’s athletic programs in order to equalize sexual representation in
college sports. But neither ends could have been accomplished (as easily) if Congress had
not supplied the means with poorly crafted legislation.
The latest exhibit in this museum
of federal malfeasance is the Food Quality Protection Act. The FQPA, as it is
affectionately known in acronym-hungry Washington, was debated, passed, and signed into
law within a space of two weeks in the summer of 1996. Hailed by agricultural and
environmental groups alike, the act replaced the old Delaney Clause, an anti-pesticide
relic of the 1950s that prohibited any detectable level of cancer-causing agents in
processed food.
The act gave the Environmental
Protection Agency the authority to restrict pesticide use in order to achieve a standard
of "reasonable certainty of no harm" in the nation’s food supply. This
August EPA finally exercised that authority by restricting and banning the use of two
popular and previously undangerous pesticides. The groups who supported the FQPA responded
by filing lawsuits against EPA.
One side, led by the National
Resources Defense Council, objects to EPA’s timid enforcement of the law. The other
side, with the American Farm Bureau at its helm, is suing EPA for overstepping its
authority. Thus litigation trumps regulation, which trumps legislation.
Elite spin would have it
otherwise, but of the three branches of government, the legislative branch is the one
peopled by the politicians closest to their constituents. That makes them the easiest for
us — all of us, not just a chosen few — to influence, supervise, and restrain.
We should all use our power to
force those in Congress to take their obligations more seriously. And part of that
obligation is to put a leash on the federal bureaucracy. Serious reform of the
Administrative Procedure Act is the first step.
Jon L. Shebel is president and CEO of Associated Industries
of Florida and affiliated companies (e-mail: jshebel@aif.com).
