Congressional Deregulators Should Push an Aggressive Agenda
Doug Bandow, a nationally syndicated columnist, is a senior fellow at the Cato Institute and the author and editor of several books, including Tripwire: Korea and U.S. Foreign Policy in a Changed World.
Although Republicans retain the control of Congress that they won in 1994, they have done little good with their power. President Bill Clinton, despite his crippling scandal woes, retains the initiative in making policy. Not only does he push for new spending programs, but his administration also continues to pour forth a flood of intrusive regulations—8,645 in the last two years alone.
Of course, people have been suffering from runaway bureaucratic rule-making ever since Congress began creating agencies. Federal regulations cost us $670 billion annually, according to Thomas Hopkins of the Rochester Institute of Technology. That’s about $7,000 per family—and doesn’t count lost economic growth.
For years constitutional scholars have decried Congress’s “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 alphabet-soup bureaucracy. But legislators have been unwilling to give up this tool to expand their power. After all, it would take real work for them to fill in all the blanks created by their own statutes. Equally important, doing so would allow voters to hold them responsible.
Cases are legion where bureaucrats have created rules essentially out of whole cloth. For instance, the entire regulatory web governing wetlands grows out of the Clean Water Act, which never mentions wetlands. Yet under these rules people find their property effectively seized; an unfortunate few even end up in jail.
The Clinton administration made a similar power grab through the Food and Drug Administration’s proposed controls over the tobacco industry. Such rules were never thought to be within the purview of the FDA. Nevertheless, the agency unilaterally declared its authority to ban advertising, control tobacco production, and monitor cigarette sales.
Even where the authority exists, agencies often act irresponsibly to achieve ideological ends. For example, the Clinton Environmental Protection Agency developed air pollution rules, allegedly to protect children, which offered minimal health benefits to justify their enormous cost.
Yet the GOP Congress did nothing. Republicans were unwilling to make any effort to explain why rules that sounded superficially appealing were actually environmentally as well as economically destructive.
The Clinton regulatory flood continues. As Angela Antonelli of the Heritage Foundation points out, the number of pages in the Federal Register, which catalogues federal rules, peaked under President Jimmy Carter at 87,012. It was still a too-high 53,376 pages in 1988, President Ronald Reagan’s last full year in office. Last year the Federal Register was back 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 deregulators should push an aggressive agenda. They should start by killing agencies. There is no evidence that OSHA has had any impact on workplace deaths and injuries, but plenty of evidence that its nitpicking rules cost far more than any benefits they provide. By slowing the flow of drugs to market, the FDA has killed far more people than it has saved. And so on.
Legislators should stop delegating near plenary power to regulatory bureaucracies and allowing informal “nonlegislative rules” to be binding. Congress should undertake systematic oversight of federal regulatory activity.
Regulation can be lethal. A half dozen rules—for chloroform at pulp mills, for instance—are estimated to cost literally trillions of dollars per life saved. Yet a 1994 Harvard University study figured that 60,000 people die each year as a result of today’s regulatory complex, which diverts tens of billions of dollars from productive uses to fighting just such trivial risks.
Congress could at least say no to bad regulations before they take effect. Until 1996 that wasn’t easy, since both houses of Congress would have had to pass a new law—over the President’s veto, if necessary. Congress did create a one-chamber veto, which was later voided by the Supreme Court.
But three years ago Congress approved the Congressional Review Act (CRA). It requires all agencies to submit their rules to the Senate, House, and General Accounting Office (GAO). Legislators then have 60 days to use an expedited lawmaking process (easing the discharge of resolutions from committee, for instance) to pass a joint resolution disapproving the regulations. Already agencies have been resisting the act’s requirements, just as they have sought to thwart earlier attempts to restrict new regulations. The departments of agriculture and transportation, in particular, simply refuse to submit some rules to the GAO. The GAO has done little to implement the law.
Meanwhile, Congress has not yet blocked even one rule. It may be that all 8,645 rules approved by the Clinton administration in 1997 and 1998 advanced the public interest. But it’s not likely.
Past regulatory reform legislation has had little effect. For instance, the Paperwork Reduction Act and Unfunded Mandates Reform Act were both weakened before being passed in 1995 and have had only minimal impact. Other reform measures, such as property rights protection, regulatory budgets, and requirements for risk assessment, failed to become law. Throughout most of U.S. history, Congress was viewed as the strongest branch of government. But regulation has given presidents the power effectively to make law. For the sake of liberty and the Constitution, Congress needs to act aggressively to curtail agency rule-making.
