Democratically Durable Regulation

Abstract

Regulatory review’s primary tool is economic: cost–benefit analysis. But regulation’s consequences
are not just economic; they are also political. In this Essay, I offer a new approach to
regulatory review, one with politics at its core. I show why politics matters for regulation and
how policy makers can rigorously assess their decisions’ political implications over time.

If regulators should think about politics, what values should guide them? To answer this
question, I focus on an especially important subset of policy challenges, which I call “structural
risks.” These are systemic problems that worsen over time, such as climate change.
Structural risks bring into stark relief the importance of politics for regulatory review: they
affect the political capacities of future generations, are exceptionally complex, and require
durable political coalitions to be managed.

I argue that there are strong reasons, both principled and pragmatic, to regulate these risks
democratically—that is, in ways that respect and reinforce citizens’ freedom and equality.
Structural-risk regulation requires defining goals across ecological, economic, and other
large-scale systems. Administrators’ mandate to choose these goals demands democratic
legitimation. And their policies will be less effective without the social trust that democracy
can best provide.

I then offer concrete suggestions for democratizing regulation. Most importantly, I argue that
structural-risk regulation should be “democratically durable.” Drawing on emerging socialscience
research, I contend that regulators should consider not just cumulative costs and benefits
but also the policy feedbacks of proposed rules. Effective regulation requires attending to
how new policies create new politics. Moreover, regulators should assess these consequences
in explicitly democratic terms. The result would be an administrative state better able to confront
today’s systemic challenges—and with a stronger democratic claim to doing so.

Keywords: Regulatory review, OIRA, administrative law, democracy, structural risk, policy feedback