Although Republicans retain the control of the U.S. Congress that they won in in 1994, they have done little good with their power. U.S. President Bill Clinton, despite his endless scandals, continues to aggressively expand government. His administration has enacted 10,866 new regulations since 1997 alone.
Federal regulations cost the United States $737 billion last year, according to Thomas Hopkins of the Rochester Institute of Technology. Washington spent nearly $18 billion more to enforce its rules. That totals more than $7,200 per family — not counting lost economic growth.
For years American constitutional scholars have decried Congress’ “excessive delegation” of power to the hundreds of departments, agencies and bureaus that fill Washington. Average citizens have complained too — after being fined by OSHA, penalized by the IRS, sued by the SEC or otherwise abused by one or another of the alphabet-soup bureaucracies. But legislators have been unwilling to give up a tool that effectively expands their power.
Cases are legion where officials have created rules essentially out of whole-cloth. For instance, the entire regulatory web governing wetlands flows from the Clean Water Act, which never mentions wetlands. Yet under these rules people find their property effectively seized; an unfortunate few end up in jail. Even where legal authority actually exists, agencies often act irresponsibly to achieve particular ideological ends.
Yet the GOP Congress does nothing. Angela Antonelli of the Heritage Foundation points out that there were 53,376 pages in the Federal Register, which catalogs federal rules, in 1988, President Ronald Reagan’s last full year in office. In 1997, the Federal Register was up to 64,549 pages.
The Center for the Study of American Business reports that spending on 61 different regulatory agencies will hit $17.9 billion this year, the highest ever. Staffing is also up, to 127,927 employees (full-time equivalents).
Congressional reformers should start by killing agencies. There is no evidence that the Occupational Safety and Health Administration has had any impact on workplace deaths and injuries, but plenty of evidence that its nit-picking rules cost far more than any benefits they provide. By slowing the flow of drugs to market, the Food and Drug Administration has killed far more people than it has saved. And so on.
Legislators should also stop delegating near plenary power to regulatory bureaucracies and allowing informal “nonlegislative rules” to be binding. Congress should systematically monitor federal regulatory activity, through either an expanded Congressional Budget Office or a separate body focused on regulation.
Finally, Congress should force agencies to justify their work. For instance, the Regulatory Improvement Act, introduced by Senators Carl Levin and Fred Thompson would require agencies to explain what and why they were doing, measure benefits, costs and risks, and assess alternative approaches.
More recently, Senators Thompson and John Breaux introduced the Regulatory Right to Know Act, which would expand regulatory reporting by the Office of Management and Budget. Clyde Wayne Crews of the Competitive Enterprise Institute advocates requiring individual agencies and the Office of Management and Budget to compile a Regulatory Report Card.
Where agencies cannot offer a convincing case that documentable benefits exceed costs, regulations should be killed. Alleged benefits should also be compared against the opportunity cost, that is, what could otherwise be done with the money. A half dozen rules — for chloroform at pulp mills, for instance — are estimated to cost literally trillions of dollars per life saved. For this reason a 1994 Harvard University study figured that 60,000 people die each year as a result of today’s regulatory mess, which diverts money from productive uses to fighting trivial risks.
Congress could act under the Congressional Review Act, which it approved three years ago. This law requires all agencies to submit their rules to Congress. Legislators then have 60 days to utilize an expedited lawmaking process to pass a joint resolution disapproving the regulations.
Unfortunately, Congress has not yet blocked even one rule. It may be that all 10,866 rules approved by the Clinton administration since 1997 advanced the public interest. But it’s not likely.
Not surprisingly, as attorney John Shanahan has pointed out, agencies have been steadfastly resisting the CRA’s requirements, just as they have sought to thwart earlier attempts to restrict new regulations. In a study for the Alexis de Toqueville Institution, Shanahan proposed that Congress create a joint review committee to better monitor rulemaking and compliance with various reform statutes.
Throughout most of U.S. history, Congress was viewed as the strongest branch of government. But regulation has given presidents the power to effectively make law. Legislators should redress the resulting imbalance by dramatically curtailing agency rule-making.
In a time of both misinformation and too much information, quality journalism is more crucial than ever.
By subscribing, you can help us get the story right.