Instead, the federal government needs to create an independent panel to review regulations and make recommendations to Congress to improve or eliminate them, the paper argues.
"At this point, we'd like to see the regulatory improvement commission as a politically viable process which potentially both Democrats and Republicans can agree on, even in today's conflicted environment," said Mandel.
The commission could be akin to the military's Base Realignment and Closure Commission, an outside panel that decides on which military bases to close, said Richard Williams, a former regulator with the Food and Drug Administration and director of policy research at George Mason University's Mercatus Center, which tends to oppose regulations. That commission is used "as a way of providing cover for Congress — political cover," added Mandel.
One problem with current regulatory reviews is the difficulty of calculating counterfactuals. How would an agency be able to evaluate, say, the potential benefits had a rule never been instituted? The effect can be hard to measure, and the government does not use a single calculation.
"There's no clear methodological guidelines about how you calculate cost savings from regulatory look-back," said Cary Coglianese, a professor of law and political science at the University of Pennsylvania.
Agencies also are suspicious of eliminating their own rules, in which they have often invested years of work.
“You own these rules," said Williams. "It's like which one of your babies do you want to kill? ... There's no incentive for agencies to want to get rid of rules."
Without a new regulatory review system, said Susan Dudley, director of The George Washington University's Regulatory Studies Center, "the outcomes of these retrospective analyses are gong to be superficial."