Christmas came early for those who fly often. As you've probably heard and maybe already benefited from, the Federal Aviation Administration has taken steps to allow expanded use of portable electronic devices by airplane passengers. I applaud the modification of this poorly constructed regulation. Unfortunately, while there are plenty of other regulations that need to be modified or eliminated, this type of reform – regulatory reform that entails admitting that an existing rule has some problems – is rarely the gift that keeps on giving.
According to the FAA, the modification of this rule began back in January at the request of FAA Administrator Michael Huerta (who, perhaps not coincidentally, was sworn into office that same month). At that point, a committee was assembled to examine whether these devices were likely to pose any real risk to commercial airplanes, and concluded that for most airplanes, they don't. On the surface that seems like great news, but the fact that it took a new administrator's request to even get the ball rolling exemplifies how one-sided typical agency actions are. The day-to-day business of agencies consists of making rules, and it usually requires external impetus – such as a new administrator's request or the occasional presidential executive order – to cause agencies to actually re-examine and potentially modify or eliminate them.
Don't put all the blame on the agencies, though. Our antiquated regulatory system gives little incentive to agencies to eliminate or modify rules. Instead, the simplest way for agencies to appear to accomplish their missions is to create new regulations, regardless of whether they are likely to be effective. So regulations accumulate consistently, and that is not without consequence. As economists Michael Mandel and Diana Carew recently wrote, "The political system, understandably, reacts to major events – new technologies, corporate accounting scandals, environmental discoveries, or reports of tainted food or faulty products." When regulations are created in reaction to major events, "new rules are [placed] on top of existing reporting, accounting, and underwriting requirements. … For each new regulation added to the existing pile, there is a greater possibility for interaction, for inefficient company resource allocation, and for reduced ability to invest in innovation. The negative effect on U.S. industry of regulatory accumulation actually compounds on itself for every additional regulation added to the pile."
The problem is that there exists no process for retrospective review of regulations. While every president since Jimmy Carter, regardless of party, has made some attempt to induce agencies to look back at their own regulations for obsolete, redundant, or ineffective rules, each of these efforts has borne scant fruit. In his 2011 State of the Union Address, for example, President Obama noted, "There are 12 different agencies that deal with exports. There are at least five different agencies that deal with housing policy. Then there is my favorite example: The Interior Department is in charge of salmon while they are in fresh water, but the Commerce Department handles them when they're in saltwater. I hear it gets even more complicated when they are smoked."
The fact that we see the occasional successful modification of a rule, such as the FAA's electronic device regulation, simply shows how much potential there is to change rules that do little other than restrict our freedom. However, such efforts won't make much of a dent if each effort requires a special request from a new administrator and a newly appointed committee. Furthermore, efforts that put agencies in charge of reviewing their own rules are likely to fall flat, for the same reason that professional sports leagues don't allow home teams to provide their own referees. Congress and the president need to create a streamlined process in which neutral parties (people who don't work for the agencies that made the rules) would continuously test existing regulations for efficacy and change or eliminate rules, such as the portable electronic device rule, when they are found to be ineffective.
Patrick McLaughlin is a senior research fellow at the Mercatus Center at George Mason University.