Strengthening the 4th Branch of Government

This blog post is the second in a series outlining the Center for Progressive Reform’s new strategic direction. We published "A Turning Point on Climate" in October.

Watch a 2-minute video from James Goodwin as he explains the regulatory system in an approachable and lighthearted way.

Over the last four decades, small government ideologues have waged a coordinated attack against government. The strategy has paid off: Public approval ratings of all three branches of government are at all-time lows.

Nevertheless, the federal government still manages to get things done on a day-to-day basis, and that is primarily due to the so-called 4th branch of government — the administrative and regulatory state that employs 2 million workers, invests trillions of dollars each year on things like air pollution monitoring and cutting-edge clean energy research, and makes rules that protect us all.

This is not to say that the administrative state hasn’t been the target of conservative attacks, too. These attacks have left federal regulatory system battered, bruised, and starved for resources. Nevertheless, the genius of its design — including such factors as a professional bureaucracy, science-based policymaking, strict transparency measures, and a commitment to public participation — has enabled it to persevere in the face of these challenges.

Simply put, the administrative state makes our lives our better, and we would be better off still if we resolved to strengthening it. We have rules for clean air and drinking water, protections against food poisoning, and an apparatus to implement the newly signed $1.2 trillion infrastructure bill. The administrative state is both the face of government to most Americans (think: roads and bridges, student loans, and Social Security) yet nearly invisible to them (think: “Keep the government’s hands off my Social Security!”).

After laws are passed, it is the administrative state that decides and implements policies. Our 4th branch of government — not Congress or the president — does the heavy lifting of governance, most recently on controversial issues like COVID vaccine approval and vaccination requirements in the workplace. And that is as it should be. Agency personnel are the repository of expertise on the complex issues at the heart of policymaking, and they are well-situated to interface with the public to combine their expertise with on-the-ground knowledge about how policies will work in practice.

Agency expertise has not protected the administrative state from overt politicization. It is one thing for federal agencies and their rulemaking to be guided by the sitting president’s priorities and another thing altogether to disfigure agencies beyond recognition, which defined the Trump era. Trump’s Sharpie war with the National Oceanic and Atmospheric Administration (NOAA) was cringeworthy, but the suppression of COVID infection data and prevention strategies cost hundreds of thousands of lives.

To protect the mission of federal agencies, some advocates seek measures to shield agencies from undue political interference and insulate agency decision-making.

The Inherent Tension in Rulemaking

But there is a tension here. Promoting technocracy in rulemaking can help prevent undue political interference like we saw during the Trump administration, but it also risks shutting out the public’s voice. In policymaking, not all politics is bad.

That’s why here at Center for Progressive Reform, we think differently: Federal agencies and rulemaking should be more accessible to the public, not insulated from the public. Agencies should be more democratic and capable of engaging in the debate and tug-of-war between stakeholder interests, not hidden like an Oz behind the curtain. It’s inherently unfair and anti-democratic that corporate lobbyists have such access to agencies and regulators while the public is all but shut out.

We face current and looming crises in this country — a worsening climate, escalating inequality, structural racism, growing polarization — and we absolutely need the full power of government to address them.

Federal agencies that serve as a forum for collective decision-making — rife with vested interests, trade-offs, and compromise — will serve the common good. Federal agencies that actively seek out and engage communities that are normally shut out of the process, yet heavily impacted by it, will help counterbalance the power of corporate interests.

Regulatory reform is an area that the Center for Progressive Reform knows well. In fact, it’s our raison d'être. Twenty years ago, a group of progressive law professors founded the Center for Progressive Regulation (our earlier name) to resist the attempted rollback of key regulations during the George W. Bush era.

Over the years, we have issued repeated calls for reform and have been singularly influential, for example, in exposing the fallacies of cost-benefit analysis that undergird the decision-making process for proposed regulations. Cost-benefit analysis fails to give weight to the effects of discrimination and inequity and disaggregated benefits and seriously undervalues future generations. It also serves as a barrier that excludes most members of the public from participating in policy decision-making.

Today, we’re facing a once-in-a-generation opportunity to push government to use the full force of its power for good. Alongside our partners at the Coalition for Sensible Safeguards, the Center for Progressive Reform has pressed hard for the Biden administration to “modernize regulatory reform,” and that process is now underway. This is the moment for progressive change. With the prospects of a divided Congress or a Republican in the White House, the 4th branch may be the rock to which progressives cling.

Our Regulatory Agenda

What is our agenda for making the regulatory system more democratic and responsive to the crises of our time?

First, regulatory decision-making must emanate from public participation. Agencies should identify and eliminate all potential barriers to meaningful participation in the development of analyses, especially for people of color and low-wealth individuals. The analysis would be oriented around individuals’ lived experiences, rather than demanding specialized technical expertise as the price for a seat at the table. Making sure that agencies are able to “meet the public where they are” in this manner would require institutional changes, including hiring staff with diverse backgrounds and training in other disciplines and changing the timeline, locus, and stakeholders in decision-making.

Alongside rulemaking, government agencies must also rethink permitting, monitoring, and enforcement. The issues on where to build, how to extract, what can be emitted, and what standards to codify are, first and foremost, local concerns. Involving local people in the regulation of those activities makes good democratic sense.

Whether it’s pollution, hazards in the workplace, or unsafe products, people who experience negative consequences should be our front lines of defense in monitoring and enforcement. We need new types of relations between agencies and communities and new mechanisms to incorporate community action.

More than just community engagement or good government reform, remaking the administrative state is key to the progressive agenda for shifting power from the powerful to those who have been systematically shut out and historically burdened.

As K. Sabeel Rahman, the former president of DEMOS who now serves in the Biden administration’s Office of Information and Regulatory Affairs, commented, “From environmental to workplace safety, to financial regulation, to consumer protection, the modern regulatory state is our primary tool for addressing systemic social and economic concerns.”

Long live the regulators!