Picture a stretch of a busy highway. The speed limit is a moderate 65 miles an hour, which most commuters follow comfortably. Occasionally a maniac driver speeds through doing 80 or more, and may or may not be caught. No one particularly minds, until a series of high-profile crashes creates a public outcry about the speeding problem. The department of roads resolves to crack down on speeders and adjusts the speed limit down to 55.
Commuters might grudgingly slow down a bit, but because the road is built for traveling at 65 miles an hour, it doesn’t make sense to drive at 55—so most drivers don’t, and traffic continues to travel at 60 mph or so. The highway patrol, seeing that everyone’s just matching pace with traffic, turns a blind eye to this insignificant “speeding” and continues to work on catching the big offenders. For the most part, the change in speed limit does not have much impact.
However, while the stricter speed limit may seem “harmless”, it actually has a very chilling effect. Suppose one day a trooper wakes up on the wrong side of the bed and decides he doesn’t like the look of a particular driver, so he pulls them over for speeding—an open and shut case, since they’re speeding like everyone else. It is hardly fair or just, however, that one speeder among many should be singled out for punishment based on an arbitrary whim. All that the lower speed limit accomplishes is giving enforcement officers discretion to punish normal driver behavior at will—it does not actually make it any easier to catch or punish the original problem speeders, since it is just as illegal for them to drive at 80 in a 65 zone as it is in a 55 zone.
We’re not writing about this to complain about law enforcement officers. Rather, we use this example to illustrate a broader failing of regulatory efforts. When enforcement agencies find themselves frustrated they often resort to casting a wider net, writing new rules that make normal and honest behavior illegal. Often, these rules are made with no malicious intent—they’re still only after the big fish, and they figure any small fry that get picked up along the way can be released with no harm. But by giving themselves their pick of targets, they substitute their own discretion for the rule of law.
This is no way to run a free country. We want regulators to catch the criminals as much as anyone does—more than most, since our reputation suffers when fraudsters are allowed to run free. But passing stricter rules and making everyone into criminals is absolutely not the right answer. The next time you hear someone calling for tighter regulations, listen with a critical ear to what they’re saying: are they proposing to catch bad guys, or will they end up targeting everybody?