Memo to Biden: Regulation Is Infrastructure

James Goodwin

April 27, 2021

President Joe Biden's April 28 speech to a joint session of Congress — his first major address since his inauguration — offers him a chance to outline and defend his policy priorities. He should use this opportunity to articulate a positive vision of regulation as an institution within our democracy and to champion the crucial role it plays in promoting the public interest.

Biden will likely focus much of his speech on his ambitious infrastructure plan, from which he can easily pivot to regulation. After all, robust regulations are essential to the success of the U.S. economy, no different from traditional "gray" infrastructure like roads, bridges, pipelines, and power lines.

Strong regulatory protections provide a foundation of trust, which is critical for keeping our economy humming. Imagine, for example, if the Biden administration's Occupational Safety and Health Administration (OSHA) issued its long overdue emergency temporary standard to protect workers from being exposed to COVID-19 on the job. Such a standard would give workers and consumers confidence that they can safely get back into the marketplace, providing a much-needed jolt of economic activity.

Like bridges, regulatory protections also link, in durable and meaningful ways, the interests of disparate economic actors to promote their mutual well-being. An Obama-era regulation that sought to require financial advisors to make decisions based on their customers' economic interests instead of what would yield them the greatest compensation was intended to have this effect. Such measures may come at a short-term cost to the financial services industry — cheating can be lucrative, after all. Over time, though, more people would be likely to avail themselves of the services this industry offers, as they come to recognize financial advisors as worthy of their trust. If this rule hadn't be wrongly struck down in court in 2018, it would have meant financial services customers getting better results, and the financial services sector getting more customers. With interests aligned, it was a win-win.

When strongly enforced, regulations are essential guardrails for our economy. Indeed, if the United States is to do our part in stopping humanity from driving over the edge into climate change-fueled cataclysm, we must pursue an aggressive strategy to wring greenhouse gas emissions out of our economy as quickly as possible. Regulations targeting the emissions of individual industrial sectors will play a crucial role in that strategy — and hopefully prevent our country from careening off the climate cliff.

Civic infrastructure

The value of regulation extends well beyond its contributions to our economic infrastructure. It also forms a critical part of our civic infrastructure. Regulation, in short, is democracy in action. Though far from perfect in practice, the regulatory system offers an irreplaceable public sphere in which we all can work together to give life to our common values through policies that promote our common goals.

Through its public participation opportunities, the regulatory system creates a foundation of trust between and among fellow Americans, regardless of where we might stand on a particular policy issue. Brought face-to-face to contest and deliberate, we are ultimately empowered to recognize the innate dignity and humanity of even those with whom we disagree. In this way, a vibrant regulatory system can help repair the partisan and cultural divisions that have long embroiled this country.

Similarly, the regulatory system can restore a sense of connectedness between ourselves and our government. It offers us opportunities to interact with public officials on an ongoing basis, which can help bridge the divide that has left many of us feeling like our government is some distant "they" instead of an extension of ourselves, as if our government is somehow not part of "we the people."

Better still, when we see the impact that we have on regulatory policymaking, we have a greater sense of authorship over our shared destinies as members of the broader American community.

And, as we increasingly feel a sense of having "reclaimed our government," we will become more invested in developing our civic persona and carrying out our public-minded responsibilities, including not only showing up to the ballot box but also embracing other deeper forms of democratic engagement. In turn, rejuvenated civic empowerment will buffer future incursions of creeping authoritarianism that threaten the American democratic experiment.

If the Obama administration was any guide, conservative lawmakers and their allies in industry will waste no time in attacking the foundational legitimacy of the Biden administration's use of regulation to advance its public-centered policy agenda. The Biden team must not merely rebut these attacks on their own terms, but rather preemptively reframe the debate over regulation by laying out an affirmative vision of its essential role in our economy and democracy. With the eyes of the nation watching, Biden's speech to Congress provides an opportune moment to do just that.

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