Skip to main content

Let’s Stop Allowing Special Interests to Pull Up the Ladder of Opportunity


"People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices."

-Adam Smith, The Wealth of Nations

A legislator I know once told me that he heard a lobbyist for a trade group describe his job as helping those already on top of the building pull up the ladder so that no one else would be able to climb to the top. What he meant was that he helped this trade association get the legislature to pass laws that made it ever more difficult to become licensed in the field, thus limiting competition for his paying clients. For the incumbents in the field, this seems like an easy trade: the fee to hire the lobbyist is relatively small compared to the windfall produced by using the law to eliminate future competition.

To the lobbyist’s credit, at least he was forthright about what he was being paid to do (rather than pretending that he was out to protect “public health and safety”). But pause for a moment and contemplate what this portends for society at large. The practical effect of this mentality is that many people are legally prohibited—or at least substantially hampered—from pursuing their chosen career. Moreover, the entire goal of such action is to keep prices to the consumer high by artificially manipulating the supply of practitioners.

Occupational licensing has exploded in the modern United States. The share of occupations covered by a license has grown from approximately 5% in 1950 to more than 29% today. Unfortunately, Oklahoma has been right there in the thick of it. According to a recent study, Oklahoma is the eleventh most burdensome licensing state in the country.

Occupational licensing as a policy is a throwback to the medieval guild system whose demise has been called an “indispensable early step in the rise of freedom in the Western world.” As pointed out by several 1889 Institute studies, there is little evidence that public health and service quality are enhanced by licensing, but there is a good deal of evidence that occupational licensing limits work opportunities, redistributes income from lower to higher income individuals, increases the cost of living, limits innovation, and leads to more licensing.

So, despite its negative consequences, why does this pernicious form of regulation persist? A clue can be found when one considers that rarely, if ever, is a licensing regime enacted into law after a great public outcry for the regulation of a rogue industry that is harming the public. On the contrary, it is usually the existing members of the occupation itself that organize a political effort to impose licensing on their own field. They are simply trying to pull up the ladder.

1889 Institute has proposed a framework for evaluating new and existing licensing laws in its publication “Policy Maker’s Guide to Evaluating Proposed and Existing Professional Licensing Laws.” We argue there are only two valid reasons to license an occupation: (1) an occupation’s practices present a real and probable risk of harm to the general public or patrons if practitioners fail to act properly; and (2) civil-law or market failure makes it difficult for patrons to obtain information, educate themselves, and judge whether an occupation’s practitioners are competent. Unless both of these circumstances are present, people should be left free to practice the occupation unimpeded by a government licensing requirement.

The Wealth of Nations excerpt quoted above is sometimes cited (perversely) by proponents of additional government intervention in markets. But what follows that excerpt is largely ignored. Smith continues:

"It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary. A regulation which obliges all those of the same trade in a particular town to enter their names and places of abode in a public register, facilitates such assemblies. . . . A regulation which enables those of the same trade to tax themselves in order to provide for their poor, their sick, their widows, and orphans, by giving them a common interest to manage, renders such assemblies necessary. An incorporation not only renders them necessary, but makes the act of the majority binding upon the whole." 

Modern occupational licensing has advanced far beyond a mere “public register” (in fact, those of us who would like to roll back licensing would be thrilled to see current licenses reduced to simple public registries!). It is time to free ourselves from the burdens and unnecessary costs of restrictive occupational licensing regimes. Doing so will enhance the freedom of individuals to pursue their calling in life, and will benefit the consumers of these new entrants’ services.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

Popular posts from this blog

Is Education No Longer the Primary Mission of Our Public Schools?

Did you know that the state of Oklahoma is currently experiencing not one, but two pandemics? Until yesterday, neither did I. According to the Oklahoma City School District, the state is currently experiencing the “dual pandemics of COVID-19 and Systemic Racism,” and has decided to spend valuable time and resources to ensure that their teachers learn how to “practice alternative ways of relating to…[their]students.” In the meantime, teachers are supposed to conduct their classes online   into November. Unfortunately, if the District doesn’t adequately prepare their teachers to use the available online learning platforms, it won’t matter how woke they are, they won’t be interacting with their students at all.   At this point, we really have no idea what the school year will look like, and school districts have given little basis for optimism that students will actually learn anything. Oklahoma City public schools closed in March and “went online.” However, due to lack of suffi...

Protecting Your Rights: Interpreting Law by Its Plain Meaning

When deciding whether people have broken laws, should judges consider the intent of the legislators who wrote the law? Or simply consider the plain language of the law as written? Legal scholars have debated this question for decades. However, there is only one answer that protects We The People. The Declaration of Independence states, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” This means, among other things, that only laws actually voted on by the people (or their validly elected representatives) can be legitimately enforced. Any purpose not written into the law was not voted on, and so should not be imposed. What does this have to do with interpreting laws? In the republican form of government, the citizens speak through their elected representatives. These representatives pass laws collectively, almost always through two legislative bodies (House and Senate) and an executive (President or...

What’s So Bad About Occupational Licensing?

Why does accepting payment for a service make an otherwise-benign activity suddenly illegal? Accepting money is what distinguishes cutting a friend’s hair for free from a criminal mastermind who takes money for illegally performing cosmetology or barbering without a license. Have you ever paid for a bad haircut? Did the cosmetology license prevent it?  Have you ever had a bad meal in a restaurant (which is, by law, highly regulated)? Have you ever had an outstanding home cooked meal prepared by someone without a license? So how much do licensing and regulation do to ensure high standards?  Occupational licensing is something of a pet peeve for us here at the 1889 Institute. We devote a whole section of our website to it. Why do we care so much?  The Institute for Justice estimates that occupational licensing costs consumes an average of $203 billion per year nationally.  Licensing undeniably hurts the economy through deadweight loss - when the labor market...

The Problem of Diffuse Costs and Concentrated Benefits

Do you ever find yourself observing a seemingly illogical government program , spending decision, or other strange practice and ask “how is it that no one has fixed that?” If you are like me, you encounter this phenomenon regularly. This often takes the form of a curious headline (Save Federal Funding for the Cowboy Poets!) that most people see and can’t believe is real. I would like to suggest that this phenomenon often results from the problem of diffuse costs and concentrated benefits. To understand this concept, consider a hypothetical law that assessed a $1 tax on everyone in the United States with the proceeds to be given to one individual for unrestricted use as he sees fit. The people harmed by such a law—the individual taxpayers—will not be very motivated to spend the time and effort to convince Congress to change the law. They might resent the dollar taken from them for a silly cause they don’t support, but the lost dollar isn’t worth the trouble of doing something about i...