Don’t give federal agencies carte blanche on regulations — make Congress vote
The House Chamber is seen as they vote for Speaker during the first day of the 118th session of Congress on Tuesday, January 3, 2023.
The Limit, Save, Grow Act, recently passed by the Republican House of Representatives, would raise the nation’s borrowing limit through March 31 of next year or by $1.5 trillion, whichever comes soonest. The measure also includes a provision that would require a congressional vote on major regulations. Currently, no such vote is required; administrative agencies are able to push through their final regulations with little input from the legislature.
In response, some argue that forcing Congress to vote on regulations would “make it impossible to regulate.” Don’t believe the hyperbole. A number of states already require legislative votes on regulations, and it doesn’t hamstring the process. Some, like Florida, are among the more regulated states in the nation.
Over the last century, Congress has delegated away increasing amounts of its authority, through the passage of vague and sweeping legislation that entrusts vast discretion to regulatory bodies when implementing the laws Congress passes. As a result, and contrary to the original intent of the U.S. Constitution, powerful lawmaking authority now resides in an alphabet soup of federal agencies like the EPA, the CDC, and the SEC.
Our elected representatives, meanwhile, have largely been relegated to the sidelines, engaging in political sideshows like holding hearings or writing letters to agency heads. These actions can be useful but too often constitute political theater and not meaningful oversight. Nor do legislators regularly use appropriations powers to rein in agencies. Instead, spending more often works as a one-way ratchet that only ever increases.
The House debt-ceiling bill contains a provision that would seek to rectify this unfortunate situation. The provision in question is called the REINS Act — or Regulations from the Executive in Need of Scrutiny — and it would force Congress to vote on “major regulations” (those having an annual impact of $100 million or more) before they can go into effect. This would put legislators on the record as for or against a rule, forcing them to take responsibility for the lawmaking powers they entrust to federal agencies.
Some argue this would set too high a standard, but the states prove this is not the case. In 2017, Wisconsin passed a version of the REINS Act that set a threshold whereby any rule costing more than $10 million over a two-year period would require legislative approval. Florida has a similar provision, and West Virginia requires nearly every administrative rule to be approved by the legislature.
Although Gov. Ron DeSantis is known for battling regulators throughout the COVID-19 pandemic, his home state of Florida is actually no stranger to regulation. According to a database from the Mercatus Center, Florida and Wisconsin are the 11th and 13th most regulated states in the nation, respectively — hardly places where it’s impossible to regulate. In fact, if someone were going to criticize the REINS Act, it should be because these states’ experiences show the act may not go far enough to rein in the excesses of regulators.
These aren’t the only states that require legislative involvement in rulemaking. A number of states utilize “sunset provisions,” which are expiration dates, that are structured to enable legislative review of rules. In Colorado, Idaho, Utah and Tennessee, sunsets terms are set short, to about one year until expiration. This was intended so that new rules be approved by a legislative vote or else they don’t go into effect — very similar to how the REINS Act would work.
These examples demonstrate that legislators are perfectly capable of voting on complex regulatory topics. Philip Wallach of the American Enterprise Institute, in his new book “Why Congress,” argues that in order for Congress to recapture its traditional role of crafting policy, it must embrace compromise, which could involve a return to some of the more unseemly aspects of legislating, like earmarks and logrolling. Regulation by technocrat may sound appealing compared to Congress’s antics, but it’s not representative governance — nor is it even clear it works better.
Despite all the “expertise” supposedly possessed by regulators, agencies make mistakes. The CDC failed repeatedly during the pandemic, for example, slowing down approval of COVID-19 tests and costing lives. If anything, the analytical capacities of congressional agencies like the Congressional Budget Office, Government Accountability Office and Congressional Research Service exceed that of the executive branch regulators, whose economic analysis is known to be highly subjective, incomplete, and increasingly politicized.
Don’t believe those who argue that legislative accountability would make it harder for federal agencies to protect public health and safety. A stronger congressional role in the regulatory process will make rules more evidence-based, not less. It is time our elected leaders step up and reinsert themselves into the everyday realities of making law.
James Broughel is a senior fellow at the Competitive Enterprise Institute, and formerly served as senior research fellow with the Mercatus Center at George Mason University.