The rate of compliance is sky-high.

Because the threat of regulatory nukes is so great, it is easy to gloss over that very often when faced with a regulatory nuke, in the majority of circumstances, the end result is compliance. Furthermore, often compliance is won the easy way: without the agency having to make a threat to the individual target.

Consider a regulatory nuke that is more familiar to the average American than most—the prospect of prison time for tax evasion. In 2009, the IRS received nearly 140 million tax returns and only recommended that the Justice Department prosecute 1269 for criminal enforcement due to tax or tax related reasons (Internal Revenue Service, 2010). This represents less than one for every 100,000 returns submitted. Additionally, it seems unlikely that the IRS would pursue each of the recommended cases. Interestingly, the IRS only examined about one percent of the returns filed in detail (Internal Revenue Service, 2010). The vast majority of returns do not get audited. Most Americans do not need to be threatened directly in order to be convinced that paying federal taxes is necessary. The IRS gets compliance because Americans probably for a variety of reasons including, among others, commitment to honesty, a feeling of obligation, and fear of the consequences of not paying taxes. While the story of the citizen who is unwilling to pay taxes and who has cheated the system may get the attention of the media and public, the much more common story is less exciting: it is the story of compliance. In this case, and many like it, we overlook the story that defines the vast majority of potential regulatory targets and focus—if at all—on the story of the exception. With mushroom clouds on the horizon, it is easy to focus on it and neglect the rest of the world of possibilities.

When commentators remark at how infrequently an agency uses a regulatory nuke, what is not expressed in those assessments is the rate of compliance. In instances of extreme noncompliance, lack of use of a regulatory nuke does make the nuke like dead letter law. If, however, compliance is high, as it seems to be in the context of the federal tax system, it may just be a reflection that an agency is good at leveraging the regulatory nuke. As Schelling has made clear, we do not need to launch nuclear war heads to use them. Rather, nuclear missiles have uses beyond warfare, they also hold potential in exploiting the “diplomatic use of potential violence” (Schelling, 2008/1966, ix). “The power to hurt is bargaining power. To exploit it is diplomacy—vicious diplomacy, but diplomacy” (Schelling, 2008/1966, 2).