A Radical Solution for Over-Regulation

I disapprove of the strategy for dealing with over-regulation being proposed by Charles Murray in his WSJ op-ed on principle:

Let’s just ignore them and go on about our lives as if they didn’t exist.

The risk in doing so, of course, is that one of the 70-odd regulatory agencies will find out what you’re doing and come after you. But there’s a way around that as well: Let’s treat government as an insurable hazard, like tornadoes.
People don’t build tornado-proof houses; they buy house insurance. In the case of the regulatory state, let’s buy insurance that reimburses us for any fine that the government levies and that automatically triggers a proactive, tenacious legal defense against the government’s allegation even if—and this is crucial—we are technically guilty.

Why litigate an allegation even if we are technically guilty? To create a disincentive for overzealous regulators. The goal is to empower citizens to say, “If you come after me, it’s going to cost your office a lot of time and trouble, and probably some bad publicity.” If even one citizen says that, in a case where the violation didn’t harm anything or anyone, the bureaucrat has to ask, “Do I really want to take this on?” If it’s the 10th citizen in the past month who says it and the office is struggling with a backlog of cases, it’s unlikely that the bureaucrat’s supervisor will even permit him take it on.

I propose two frameworks for implementing this strategy. The first would be a legal foundation functioning much as the Legal Services Corporation does for the poor, except that its money will come from private donors, not the government. It would be an altruistic endeavor, operating exclusively on behalf of the homeowner or small business being harassed by the regulators. The foundation would pick up all the legal costs of the defense and pay the fines when possible.

The other framework would be occupational defense funds. Let’s take advantage of professional expertise and pride of vocation to drive standards of best practice. For example, the American Dental Association could form Dental Shield, with dentists across America paying a small annual fee. The bargain: Dentists whose practices meet the ADA’s professional standards will be defended when accused of violating a regulation that the ADA has deemed to be pointless, stupid or tyrannical. The same kind of defense fund could be started by truckers, crafts unions, accountants, physicians, farmers or almost any other occupation.

because I believe that widespread law-breaking weakens the law and the general fabric of the society. It’s why I disapprove of violent rebellion as well as passive resistance in all but the most extreme of circumstances. It’s also why I disapprove of the ridiculously large number of laws and regulations heaped on us. They, too, weaken the fabric of our society by incentivizing exactly the sort of measures that Mr. Murray proposes.

However, I recognize the strategy. It is Rule #4 of Saul Alinsky’s Rules for Radicals:

Make the enemy live up to its own book of rules.

It is a sad state of affairs indeed when a society is strained between leftwing radicals and rightwing radicals. Are there no more conservatives or liberals worthy of the names?

If I were going to use Mr. Alinsky’s rules, I think I’d use Rule #4 somewhat differently. I would routinely, consistently, and systematically point out how a) the Congress and b) federal agencies fail to follow their own laws and regulations even if those laws and regulations expressly exclude them. Regulators have plenty of incentives. They need some disincentives, too.

I would also suggest Rule #12. Target individuals not just agencies.