The Case For Empirical Legislation


The concept of “unintended consequences” stemming from legislation is nothing new; there are examples of it spanning from the modern day to the most ancient of civilizations. There are mountains of books and papers written about the phenomenon, and it is taught in public policy, economics, and law classes around the world. There is even an economic term for it; The Law of Unintended Consequences. Governments throughout history and the globe have attempted to address unintended consequences from their position by further attempting to manipulate human behavior, passing new laws, legislation, and regulations, running ad campaigns, or cracking down on the behaviors that their own laws led to. But what if this problem was addressed going in the opposite direction? Why not go straight to the source? In this article, I propose doing just that. 

First, we must understand what unintended consequences are. While many people involved in political science or economic circles are familiar with the term, a layman very well may not be. And in order for this proposal to gain momentum, every free individual must be familiar with all that it entails. In this context, unintended consequences are results of laws or regulations from any level, be it Federal, State, or local, that are at best wholly unintended, and at worst completely counterproductive, to what the original law or regulation sought to achieve. 

Examples of this include rent caps, introduced in major cities around the US, seeking to achieve “affordable housing” for the poor, only to conflict with housing codes and quality regulations that result in housing options being shut down, which in turn leads to further homelessness and the waves of crime and substance abuse that often follow in its wake. Another example would be the housing crisis of the late 2000s: the Federal government pressured US banks to offer subprime loans to those that could likely not afford to pay them back, with the Federal government using a carrot-and-stick approach of assuring banks that they would cover losses through the FDIC, while simultaneously threatening them with regulation if they did not comply. The ultimate result? Waves of Americans losing their homes, and a ripple effect across the entire international market that led to what became known as “The Great Recession.” But it isn’t unique to the US, nor to economics. In British Colonial India, the governor of Delhi sought to address an infestation of deadly cobras. In order to do so, he increased the bounty on hunting cobras. Individuals seeing an opportunity began breeding cobras to kill and turn in for the bounty, resulting in worsening the cobra infestation, not bettering it

While the list of examples continues on practically ad infinitum, we must also understand why this phenomenon continues to occur. In short, it comes down to the fundamental inability for centralized power to precisely predict and prevent certain kinds of human behavior. More specifically, individuals’ incentives, and the behaviors that stem from them. If a government policy, law, or regulation restricts one behavioral option, individuals will find a way to skirt or circumvent the government’s intent and find a way to reach their own goals anyway. Because of this, the government is almost always on the back foot when it comes to addressing social and economic issues. But that doesn’t make the consequences for all any less dire. Government will always be responding to, rather than preventing individual innovation and imagination. To heavily paraphrase a popular idiom, when the government closes a door, an individual opens a window.

So how does one address this? This is where the titular idea of Empirical Legislation comes in. The idea is that any legislative proposal would be required to begin with key pieces of information: what issue it seeks to remedy, how it will remedy it, and, empirical data to support both. But this is something that is already used often when proposing new bills. Legislators regularly use empirical data to measure the effectiveness of proposed bills and to buttress their support or opposition to them. The difference here is that there would be an additional clause; clearly defined objectives, with agreed-upon metrics with which to measure those objectives tied to the proposal, and most importantly, an automatic sunset clause in case those objectives are not met by a certain time. If the predefined objectives are not met by the law after a given period of time, it is automatically repealed. Not up for a revote, not up for renewal. Repealed. With no input from the governing body. Of course, especially when considering major pieces of legislation that result in massive bureaucratic bodies to administer them, it would also require a turnover period to disassemble and reallocate the resources given to it. But this too would be non-negotiable. If the law doesn’t work, it should be automatically repealed.

Let’s look at a basic example: California has a major homeless problem in many of its most populated cities, and it is only getting worse. In response, the California State government has proposed State-wide rent caps and other regulations pertaining to living spaces and shelter. If Empirical Legislation was implemented, legislators would have to model their proposals around empirical data, showing that there is a problem, and that rent caps and other regulations would solve it, again using empirical data. But they would also have to set clear objectives and standards to be met by year five after the proposal has been made into law, and what metrics will be used to measure its success or failure. The day that the proposal is signed into law, the clock starts ticking. Once that five-year mark arrives, the agreed-upon measures will be made, and the data alone will cast its judgment. If the agreed-upon objectives and standards have not been met, then the law is automatically repealed. Any government entities set up to administer the law will have twelve months (giving time for the fiscal year to turn over) to dissolve and reallocate government resources.

Now, clearly there are problems with this idea, and there are ways around it. In the same way that private individuals will find ways around laws to meet their own goals, so too will politicians. But that is part of the beauty of freedom of expression and the debating of ideas; we can take proposals like this one and fine-tune it for the benefit of all. This proposal is but one additional tool that could be used to further hold the government at every level accountable for their actions, especially when it involves limiting the Liberty of the private citizen through legislation. It is my hope that we can look at this proposal and improve upon it to better ourselves, our society, and our nation.

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