March 24, 2011

March 24, 2011 | Commentary on Regulation

Making Congress Vote on Rules Would End Shell Game

Should Congress be held accountable for the regulatory policies of the federal government?

U.S. Representative Geoff Davis and Senator Rand Paul, both Kentucky Republicans, think it should. They have proposed legislation to force all members of Congress to vote yes or no on major rules that affect business and the economy.

Called the REINS Act, a tortured acronym for “Regulations from the Executive in Need of Scrutiny,” the Davis-Paul proposal is no arcane procedural change. It would change the way regulations are made.

By increasing Congress’s accountability for regulatory policy, it would end a shell game for responsibility that members have long played.

Congress, of course, has always had the constitutional authority to set regulatory policy. The thousands of rules and regulations adopted each year originate from the powers delegated by Congress to agencies. Those powers can always be revoked or modified by legislation.

In 1996, Congress created expedited procedures for voiding proposed rules by ensuring an up-or-down vote in the House and the Senate on “resolutions of disapproval.”

Yet the Congressional Review Act has been used only once to stop a rule, and that was a decade ago, when a Labor Department rule on ergonomics was turned back. One problem is that a resolution of disapproval, like all other legislation, must be signed by the president, and few presidents are keen on reversing the work of their own appointees.

Plausible Deniability

The dirty little secret on Capitol Hill is that most members of Congress don’t really want responsibility over rule making. They get to have it both ways: They can take credit for enacting popular but vague legislation, then plausibly deny responsibility for the specific implementing regulations that follow.

The result is power without accountability -- a useful result politically, an abysmal one for policy making.

The REINS Act would end this game by requiring every major rule, defined as those with an economic effect of $100 million or more a year, to be specifically approved by both the House and Senate to take effect. And the president would have to sign the measure. Any defeat along the way: The rule goes down.

By forcing a vote on each new rule, members face greater accountability back home for the resulting policy. And it eliminates the president’s ability to insulate his administration’s rules from challenge.

Weight of Regulation

Critics say this is a ruse to gum up the regulatory works. Reviewing all these rules would be too burdensome for Congress, they say.

In fact, there are a few dozen major regulations issued each year, hardly an undue burden. And who will explain to the business owner straining under the weight of regulation that Congress just doesn’t have time to determine if those regulations are necessary?

Critics also argue that the REINS Act would displace regulators’ “expert” judgment with political decision making. Sidney Shapiro of the nonprofit Center for Progressive Reform writes that congressional action “is likely to be nakedly political, reflecting the raw political power of special interests,” while agency actions “are backed up with reasonable policy determinations.”

Outside of political science textbooks, that’s not how government works. Regulators have their own special interests and political agenda, and they are hardly objective. If you doubt that, spend an hour at the Federal Communications Commission and watch the lobbyists flow in and out.

Different Perspectives

This is not to say regulators and Congress should see the world in the same way. Since they must regularly face the voters, members of Congress will have a different perspective than appointed regulators. Some rules will be turned back as unacceptable.

That’s not a flaw in the process, it’s a feature. No rule should be adopted if the American people, as represented by Congress, don’t agree that it’s necessary.

This hardly tilts the playing field against regulation. Very often, popular sentiment favors regulation. And congressional approval would be required for all major rule changes, even those by conservatives seeking to lessen private- sector burdens.

Requiring congressional approval of new rules wouldn’t be the impenetrable roadblock that opponents claim. Nor is it the panacea for excessive regulation that some proponents hope for.

Increasing Congress’s role in, and accountability for, regulatory policy making is a commonsense step forward.

James Gattuso is senior research fellow in regulatory policy for The Heritage Foundation.

About the Author

James L. Gattuso Senior Research Fellow in Regulatory Policy
Thomas A. Roe Institute for Economic Policy Studies

Related Issues: Regulation

First appeared in Bloomberg