Agenda for Congress: Regulatory Reform

CEI’s new agenda for Congress is out now. If you’re interested only in certain issues, individual chapters are downloadable here. We also hosted a launch event yesterday featuring Sen. Rand Paul (R-KY).

The first chapter is on regulatory reform. The focus here is not so much on individual rules, but on the rulemaking process itself. If there is a key message, it is that institutions matter. If you want a better game, you need better rules for the game. Effective reforms don’t just treat symptoms; they treat root causes, too.

To that end, here are a few principles for sound reform:

• If a rule was not needed during the COVID-19 crisis, it was probably never needed in the first place.
• Getting rid of specific regulations is not enough. Congress must also reform the systems that create those regulations.
• Congress—not just the executive—needs to be involved in reform.
• Congress should require agencies to be more transparent about the regulations they issue and their cost.
• Remember that regulations are made and enforced by the real-world government we have, not the ideal government we want.
• Introduce reform bills, even if they won’t pass right now. They need to be ready when the moment is right. It is also important to keep reform ideas and conversations alive. Sometimes the most impactful legislation is introduced knowing full well it will not become law.

We also suggest specific reforms based on these principles:

• Require transparency for “regulatory dark matter.” This includes guidance documents, announcements, and even press releases and blog posts, which agencies use to make policy changes without going through the proper rulemaking process. Rep. Bob Good’s (R-VA) recently introduced Guidance Out of Darkness (GOOD) Act would do this for guidance documents.
• Require Congress to vote on all new major agency regulations. Agencies often issue regulations that are not in accordance with congressional legislation. This would provide a check against such abuses. The recently reintroduced Reforms from the Executive in Need of Scrutiny (REINS) Act, sponsored by Sens. Todd Young (R-IN) and Rand Paul, would do this. See also my paper on the REINS Act.
• Annual regulatory report cards for agencies containing important information, such as their major current and planned rules, their cost, and more. Rep. Paul Gosar (R-AZ) introduced a bill last year to implement a version of this idea.
• A Regulatory Reduction Commission to repeal outdated and harmful rules. I wrote about this idea here and here. The Pandemic Preparedness, Response, and Recovery Act would establish a COVID-focused version of this idea. It was sponsored last Congress by Rep. Virginia Foxx (R-NC) and Sens. James Lankford (R-OK), Ron Johnson (R-WI), and Rob Portman (R-OH).
• Automatic sunsets for all new regulations. All regulations should automatically expire after 10 years unless Congress votes to reauthorize them. This will make it easier for obsolete rules to stop doing harm.
• Publish a federal regulatory budget. Congress is required, at least in theory, to create an annual budget for government spending. It should be required to do the same for regulatory costs.

These reforms should apply to independent agencies as well as cabinet-level agencies. Independent agencies, which constitute roughly two thirds of all rulemaking agencies, are currently exempt from many transparency and rulemaking requirements that apply to other agencies. This is bad institutional design, and should be fixed.

For more ideas, see chapter one of Free to Prosper, CEI’s new agenda for Congress. The entire agenda is here.