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Howard's Daily: How Congress Misses the Point on Regulatory Reform

02/28/2014 04:53 pm ET | Updated Apr 30, 2014
  • Philip K. Howard Author, 'The Rule of Nobody: Saving America from Dead Laws and Broken Government'

This week the House passed several bills that purport to reduce excess or unwise legislation. Called the ALERRT Act (Achieving Less Excess in Regulation and Requiring Transparency Act), it would make it harder for agencies to write new rules. It has about zero chance of becoming law with a Democratic Senate. With one possible exception, however, even if it did become law it wouldn't relieve the burden of unnecessary regulation. 

America now ranks 20th in the world in ease of starting a business, and probably close to last in ease of rebuilding infrastructure. But this is because of the massive accretion of obsolete laws and regulations, not the new ones. It is hard to find one regulatory program that isn't obsolete or broken in significant ways. But most of these regulations aim for worthwhile public goals, so what's needed is not deregulation but practical re-regulation. So why doesn't Congress turn its focus to fixing what's broken, including the many obsolete statutes that it enacted? Who else has that responsibility?

Sure, there are new regulations that Republicans oppose, such as stricter fuel-efficiency standards for big trucks. But these are a drop in the bucket compared to the obsolete old ones. If Congress really wants "to serve the American people and use taxpayer dollars wisely," it should start the hard work -- yes, sorry -- of dislodging the special interest stranglehold on the status quo. By stacking more process on new regulations, the House is dodging its own complicity and contributing to the general paralysis. 

So what would relieve unnecessary regulatory burdens? Sunsets on regulations and laws would be a good start, requiring lawmakers to periodically revisit how regulations actually work. Requiring an independent commission to report on whether the regulations, as written, serve the public good would enhance public accountability. Further, Congress wouldn't need to put so many shackles on new regulations if it took back the authority to overturn regulations. Why shouldn't Congress, as the constitutional lawmaking body, always have authority to veto regulations that are written under explicit congressional delegation? Today, under Supreme Court rulings, Congress can only veto a regulation if it "presents" this congressional act to the President for his signature, as it would with a new law. A constitutional amendment is thus required to restore congressional oversight of regulations it considers unwise. (I discuss this and other amendments as part of a Bill of Responsibilities in The Rule of Nobody, out in April). 

One of the proposed bills in the ALERRT Act does strike me as deserving some consideration -- the Sunshine for Regulatory Decrees and Settlements Act which limits how federal agencies and plaintiffs can enter into settlements that result in new regulations. Using the guise of a lawsuit to "settle" by imposing new regulations and consent decrees is just a way to give courts authority that, under the Constitution, is supposed to be lodged in Congress.

Regulation-wary legislators from both parties should obviously oppose new rules they think are unwise. But that will do nothing to alleviate the existing regulatory heap that is piled high with burdensome, unnecessary rules. Moreover, imposing more bureaucratic process is unlikely to accomplish the goal of fixing new regulations, and just contributes to the bureaucratic sludge.

For more Howard's Daily posts, visit commongood.org/blog.

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