The Rationale for Smart Regulation

A relentless conservative theme in this election is “less government regulation.” And I can support conservative calls for lowered government spending if done strategically, since I have come to regard the pursuit of lower taxes as simply a self-serving prerogative of those in power, but I find the notion of across-the-board deregulation deeply disturbing.

Big business’ ability to buy access to government and, more recently, to the electoral process has consequences.

As citizens, we are still feeling the effects of deregulation in the financial, pharmaceutical, airline and broadcast industries among others. Having failed to eliminate regulatory agencies altogether, big business invests in friendly legislators to ensure their vote against funding agencies staffing and operations .

The result is that industries can more freely develop, market, and deploy chemicals, drugs, financial instruments, processed foods and consumer products with little or no proof that they are safe or even beneficial. Regulatory practice is moving away from prevention toward damage control and remediation.

Say, for example, a chemical flame retardant is found to pose long-term health risk to infants. Eventually we’ll find out, of course, but only after a generation of human damage and clinical studies, at which time the product will be removed from the market or its use limited.

From the citizen’s standpoint, it’s much smarter and more cost-effective to ensure a product’s safety and efficacy before it’s sold . Pick any product: tainted or ineffective drugs, GMO seeds, dangerous chemicals in consumer products, fat-salt-&-sugar-saturated junk foods, pesticides, toxic financial investments – the list is long.

Regulation should balance consumer and business interests. To business, it should be clear, consistent and enforceable, requiring business to demonstrate a product or services’ human and environmental safety as well as its advertised benefits. Regulation should take into account international competition by requiring the same of all products entering the market.

Self-regulation, like so many business policy experiments, has failed miserably. People and businesses both need rules by which to play.

One of the near-term threats to regulation coming from the Citizens United decision is spelled out in a University of Tulsa College of Law Research Paper. Extending free speech rights to corporations jeopardizes the long-standing “commercial speech doctrine.” Given the right case, the commercial speech doctrine, which protects commercial speech as long as it is not false or misleading and does not advertise illegal or harmful activity, could fall and any regulatory limits to corporate speech or advertising could fall with it, eliminating truth-in-advertising regulation. The rationale behind regulation is consumer and environmental protection, not protecting business. Regulation should do everything in its power to ensure a healthy business climate, but only after it ensures the health of consumers and the world they live in first.

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