Author: John Johnson, Director, Legislative and Governmental Affairs
Posted: January 15, 2019

In legislatures across the country, anti-regulatory groups are targeting professions and the licenses that define them. This is a fight worth having…and winning.

Just before Thanksgiving, I attended a webinar sponsored by CLEAR (the Council on Licensure, Enforcement & Regulation). The talk featured a spokesman from the Institute for Justice, a think tank that opposes regulation, along with a state official from Virginia. The script for this webinar is one I’ve heard over the past seven years with unfailing sameness, but given the topic—professional licensure—one aspect stood out as notable and deeply ironic.

As the host introduced her speakers, their expertise—as well as the credibility for the anti-licensure positions they were about to argue—were underscored by an exhaustive inventorying of their education and licenses. (Two law degrees and an MBA, in case you were wondering.)

One might see the hypocrisy here and leave it at that. But “leaving it at that” has been the modus operandi of regulatory and professional associations for too long and that approach has become perilous to us. Indeed, it is the presumption that professions make (that their value to the public is irrefutable) that keeps them detached from this debate, thereby allowing organizations like the Institute for Justice time and space to refute that value. As we sit on the sidelines, these groups have succeeded in eroding the trust between professions and the public.

Now is the time for us to offer a robust perspective of our own that changes this conversation once and for all. The way to begin crafting this argument is by first understanding our opponents.

A primary reason those who preach from the gospel of anti-regulation can sound both enlightened and patriotic—and therefore persuasive—is as old as the American story itself. Consider our origins:

In 1620, the people we now know as the Pilgrims sailed to the New World out of a desire to break from a dominant institution known as the Church of England. These men and women were religious separatists, eager to become self-governing about their faith and way of life. One hundred and fifty years later, the United States was birthed anew as an official nation by revolutionaries who sought liberty from a second governing institution, this time a political and financial one, the monarchy of England. Woven into the very origins and our identities as Americans is a certain, inborn fundamentalism around self-determination, an aversion to oversight, an antipathy for controlling institutions. Simply put, we don’t like to be dictated to, and we don’t like people who fancy themselves entitled to dictate.

The suspicion and hostility our forebears held for governing institutions like the church and the monarchy is not far removed from the suspicion and hostility anti-regulatory groups now reserve for government and professions. It’s no coincidence that these groups tag professions and government with the exact same epithets: intellectual superiority, exclusive, elitist, oppressive, corrupt, and ineffectual. Anyone who claims to uphold the standards of good government—as regulatory and professional associations do—is often painted with the same brush.

The anti-regulatory premise sounds, at first glimpse, credible, except for the fact that this American DNA of ours has another, equal and opposite strand.

Written into our democracy is an implicit bargain and balance: for every “freedom to” do something, there is an equivalent “freedom from” having something done to us. A manufacturing company, for example, is free to be as innovative as it can be; the public, however, is free from drinking a toxic water supply as a result of what it manufactures. Our financial institutions are free to maximize their profits; those who invest in them, however, are free from being defrauded by the measures they take. Americans—whether composed of Pilgrims, Founding Fathers, or those of us living now—have always believed in both facets of freedom.

To prove this, at your next dinner party, take a poll by asking your guests to raise their hands if:

1. Diagnosed with a brain tumor, they would be fine with their operating surgeon not having an M.D.?
2. Charged with a crime, they wouldn’t think twice at being defended by someone who hadn’t passed the Bar Exam?
3. Purchasing a business, they would seek guidance from someone without a CPA license?

My guess is all hands will remain on the table.

The same will be true if you ask them about driving over a bridge designed by an uncertified engineer, or having their children live in a home assembled by unlicensed contractors.

A handful of groups, such as the Institute for Justice and the American Legislative Exchange Council (ALEC), have waged a not-so-quiet battle to dismantle professional licensure under this crusade of anti-regulation. Their point of view depends on a half-told story because it is only in the half-telling that it sounds any good.

What is this half-story?

First, this camp believes professional licenses create barriers to entering professions, and therefore handicap the American worker.

They also believe professions have a monarchic desire to retain control over their respective fields.

They regard expertise as merely a cover for exclusion and monopoly.

And they see licensure as a modern phenomenon, antithetical to the “free market,” as unnecessary now as in some “good ole days” when we were apparently happy without it.

Again, on the surface, these positions sound plausible. The problem is no one lives on the surface. Rather, we all live where it’s plausible to hear a nerve-wracking diagnosis, enter a courtroom, or require serious counsel about our financial futures. Not to mention that every day, we drive over bridges, drink water, and buy homes.

So, let’s go deeper.

According to the Oxford English Dictionary, prior to 1500, the word “professional” was used in a religious sense. It connoted a person who had taken an oath or vow; to have professed oneself to a faith. This religious etymology is another irony when considering the fervor with which anti-licensure groups now criticize professions because, far from the exalted, these ancient and humble roots of service are still what animate professions and those in them.

A professional is a professional because she aspires to meet the demands of her field to provide service to the public. In other words, joining a profession is an ambition quite opposed to exclusivism, elitism, corruption, or incompetence.

What professionals seek to do is not transactional, but rather born of a lifelong commitment to continuously pursue excellence in a given field and translate that to benefit the public. Do we really want to demean that by lowering the entry or continuing competency standards of a profession? Even if someone wanted to make a case for degrading the standards of a profession, ask that someone if he is prepared to live with those consequences? Before he answers, ask him to imagine it’s he who is being put under anesthesia prior to an operation. One need only look as far as the red and white barbershop poles because, in the good ole days, barbers could perform surgery, too.

The long tradition of what a profession and professional mean is also why the modern idea of professions creating arbitrary barriers is baseless.

For the moment, let’s set aside the odd condescension implied in the idea that the American worker is so hopelessly lazy that his ambition to become an accountant will dissolve at the very idea of passing an exam, or maintaining relevance in his field with ongoing education. Professionals actually want to do these things.

More pertinent, however, is the fact that there is not a profession in the world that does not want more members to take up its particular “vow.” In my working with the accounting profession, I have not met a single Certified Public Accountant—or any member serving on a Board of Accountancy—who hopes for a smaller, weaker cohort. The same is true of other professions. The only thing these professions want more than numbers is that those who make up the profession be qualified so they safeguard those they serve. If that desire for public protection disqualifies some from entering and practicing a profession, all professions can—and should—live with that.

Moreover, the standardized entry requirements for professions are at the heart of our American dream. By obtaining the knowledge and skills required to join professions, individuals have been given the ability to move up the socioeconomic ladder. These entry requirements for most professions provide a transparent, level playing field by which all individuals, regardless of background, can rise.

It is true that those in professions are eager to belong to them for the knowledge they confer. But to hoard that knowledge? No. Professionals are the very opposite of adversaries. They seek to bring knowledge to those who are not knowledgeable. Each of us has his or her own passions and pursuits when it comes to careers; so, we reach out to professionals when we find ourselves in unfamiliar territory and wish to be treated fully, fairly, and reliably. The expertise professionals achieve through licensure is the very thing that makes it possible for us to count on them as our best advocates and allies.

There may indeed be a half-truth in the anti-regulatory sector’s claim that the types of licenses have increased over the years, but upon fuller inspection the reasons for that expansion also have validity.

Our economy has become a “knowledge economy.” And knowledge economies are always changing. These days, even many trades depend upon a constant development and updating of skills. But such evolutions are especially true in the professions where technology, innovations in best practices, and client needs and expectations rapidly shift. Licensure demands, and therefore reassures the public, that an individual has kept pace and is therefore more capable, dependable, and trustworthy to that public.

Licensure is no modern phenomenon, however. The accounting profession saw the virtues in licensure and the regulation of its profession starting in 1896. In fact, of the 55 State Boards of Accountancy in the United States, 36 of them have been in existence for more than 100 years.

The fact is, society—in the good ole days and now—has always endorsed licensure and regulation, even at the simplest levels. Take your driver’s license. We don’t permit just anyone to drive, because we have a responsibility to the safety of those on the road with whom every driver interacts. While we certainly could abolish driver’s licenses in the name of “deregulation,” what kind of chaos would that invite? The same is true of professions.

In fact, while some regulations are certainly unnecessary, we dismantle professional licensure and regulation at our own risk. The most egregious examples of malfeasance or malpractice nearly always stem from the violation, or ignorance, of professional standards or ethics—the 2008 financial crisis being the most recent proof of that. Professional licensure ensures your life savings aren’t lost; your medical prognoses are made accurately and without conflicts of interest; and your buildings and bridges are constructed safely by those with knowhow. If someone is harmed, licensure provides a timely remedy to ensure that individual does not harm others—without cost to the public we seek to protect.

As to the notion that licensure opposes, or undermines, the “free market,” nothing could be further from the truth. Licensure is intended to bolster such markets. How so? Because free markets are only free when they’re safe and everyone plays by the rules. Such safety depends on those who fully understand a particular field to look out for the well-being of those who don’t. That’s where the licensed professional comes in. Put another way: a person may be “free” walking around a dangerous neighborhood, but no one would advise it or call that freedom. Should we dismantle professional licensure, that kind of disturbing, untrustworthy scenario is what that new world will feel like.

We in the sphere of regulatory and professional associations need to start talking in no uncertain terms about the sacred trust between professions and the public. The physics term horror vacui—or “nature abhors a vacuum”—applies here. In the absence of a different point of view, one point of view holds. In the absence of a rigorous offense, our defense will come too late. This is at the very crux of our shared mission as professional associations because, without the integrity of the professional license, there is no profession.

The time has come for us to offer the whole story because whenever half of anything becomes one’s idea of the whole, we are all cheated.

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