Putting REINS on executive power

James Valvo | Director of Policy, Americans for Prosperity

Americans are demanding major changes in the way Washington operates, but while the heat is on Congress, more power than ever resides in the executive agencies.  That means making government more accountable will require a redesign of the federal regulatory rulemaking process, which currently serves as a shield that allows laws to be made in an unaccountable and unchecked fashion — out of public view and insulated from voters.  This must end.

Unfortunately, many actors in the policymaking process — from Congress and the president, to K Street lobbyists and trade associations — prefer that the big decisions be made by bureaucrats in the executive branch.  Elected officials do not want to have to stand up before the electorate and answer for the impacts of new regulations.  Instead they delegate broad authority to executive agencies and then try to wash their hands of the issue.  Blame it on the bureaucrats.

One example is the recently enacted health care reform bill.  Even the savviest policy wonks cannot tell you exactly what the bill will do because it was really just a massive delegation of authority to the Secretary of Health and Human Services.  According to the Congressional Research Service, the 2,000-page bill has “more than 40 provisions that require, permit or contemplate” promulgating rules, which will impact one-sixth of the nation’s economy without voter input or accountability.

Presidents love the rulemaking process because it provides an alternate path for politically unpopular laws.  President Obama is moving greenhouse gas regulations through the EPA using the 1970 Clean Air Act; trying to have the FCC regulate the Internet using the 1934 Telecom Act; and installing some version of card check by recess-appointing union lawyer Craig Becker to the National Labor Relations Board.  Cap-and-trade, net neutrality and card check were all disastrous legislative failures, but the rulemaking process provides another avenue for these rejected laws to be pushed on the country.

Lobbyists and regulated entities have mastered the rulemaking process and dominate the notice-and-comment period.  Agency capture has reached epic proportions, as evidenced by the deplorable relationship between the Minerals Management Service and companies they were supposed to be monitoring.  But the current structure provides nary an outlet for a citizen to express outrage and frustration at this kind of inside dealing.  None of the agencies will be on the ballot in November.

Instead of a reactionary rush to quell the symptoms of a broken regulatory body, we should be reaching to reform the diseased regulatory system.

The REINS Act, sponsored by Kentucky Republican Rep. Geoff Davis, is one effort to bring citizens back into the rulemaking process.  The act would require all major agency rulemakings to be treated like every other new law: they would need to pass both houses of Congress and be signed into law by the president.  The bill specifically provides mechanisms to ensure that proposed major regulations can not be filibustered, amended or buried in committee.  OMB’s Office of Information and Regulatory Affairs already defines major regulations as those having an impact of at least $100 million on the economy.  Davis drafted his bill so that the $100 million mark would apply to both increases and decreases in regulatory impacts; he’s not trying to play any partisan games, everyone is covered.

The REINS Act is designed to inject accountability into the regulatory process, not block much-needed agency actions.  Of course advocates of the current process will deride any effort to return Congress to the process as an attempt to block regulations; but nothing could be further from the truth.  If Congress thinks proposed regulations are thoughtful, well-crafted and bound to improve life for Americans, they should be proud to stand up and vote for each and every major regulation.  Davis found that every year executive agencies pass approximately 90 major regulations.  Most of these new rules are noncontroversial and will fly through Congress.  However, for the handful of contentious new rules that will have a major impact on the country, citizens deserve to have their elected officials make the final decision.

Congress must take responsibility, pass the REINS Act, and reclaim some of the authority it delegated to the executive branch — and accept the accountability and voter scrutiny that will come with it.

Mr. Valvo is director of government affairs at Americans for Prosperity.

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