GOOD Act markup: The first step in illuminating regulatory dark matter

The Senate Homeland Security and Governmental Affairs Committee (HSGAC) is soon expected to mark up the Guidance Out of Darkness (GOOD) Act, an important bipartisan transparency reform that the Competitive Enterprise Institute strongly supports. I’m not ashamed to say this is a bucket list item for me.

Earlier this week, my colleague Matthew Adams and I sent a letter to the Committee urging members to advance the bill to the full Senate. Back in 2023, we wrote to the House Oversight committee supporting the legislation in the 118^th Congress.

The GOOD Act already passed the House of Representatives earlier this year with broad bipartisan support. Like the Providing Accountability Through Transparency Act of 2023, which requires agencies to publish 100-word plain language summaries of proposed rules, the GOOD Act reflects a simple but powerful principle: Americans deserve to know what rules—and rule equivalents—are being imposed on them.

In our letter, we noted that federal agencies issue numerous guidance documents each year—interpretive rules, policy statements, memoranda, FAQs, circulars, bulletins, and more—outside the notice-and-comment process required under the Administrative Procedure Act. This hidden layer of policy, which we have long dubbed “regulatory dark matter,” increasingly drives federal intervention in the economy, particularly in the wake of spending bills like the Infrastructure Investment and Jobs Act, the Inflation Reduction Act, and the CHIPS and Science Act. Such laws are interventionist by their nature, and “regulatory” well before the first conventional notice-and-comment rule ever gets written. The upshot is that modern large-scale legislative edicts like those of recent years are prone to having their aims administered by guidance. That means we need better ways to tabulate the “rule equivalents” such activity entails, since notice-and-comment regulation can no longer be said to capture the full sweep of federal activity. The GOOD Act can aid in that pursuit of transparency and reckoning.

The GOOD Act would merely require agencies to publish their guidance documents online in a single, easily accessible location specified by the Director of the White House Office of Management and Budget. That simple step would make it far easier for Congress, the public, and regulated businesses to better grasp federal agencies’ activities and expectations, since increasingly that may not be garnered even by poring over the Federal Register.

This simple step could be the beginning of a revolution in transparency. But, as the cliché goes, there’s a lot more work to be done. Congress and the administration will ultimately need to adopt stronger reforms—such as codifying notice-and-comment procedures for significant guidance, assuring that already-mandatory Congressional Review Act submission for guidance takes place, and even prohibiting certain types of guidance altogether and rethinking the roles or even existence of the agencies issuing it—to prevent future administrations from governing by that notorious “pen and phone.”

But first steps matter. By marking up and advancing the GOOD Act, the Senate HSGAC Committee can help permanently institutionalize transparency over regulatory dark matter. If dark matter is illuminated, that will make future, more ambitious reforms easier—and ensure that, no matter who occupies the White House, Americans won’t be in the dark about rules and directives that are applied to them.

To dive deeper into the abyss of guidance, memoranda and other regulatory dark matter, see:

“A Banger Trump Executive Order Abolishing Regulatory Dark Matter,” Forbes, January 28, 2025.

“Darklore Depository: A Halloween Inventory Of Federal Agency Guidance Documents,” Forbes, October 30, 2024.

“An Emergency Law to Extinguish Regulatory Dark Matter,” April 7, 2022.

“The ‘Guidance Out Of Darkness Act’ Is The Low-Hanging Fruit Of Regulatory Reform,” Forbes, March 21, 2023.

“Trump/DOGE: To End The Rule Of Flaw, Tackle Regulatory Dark Matter,” Forbes, December 9, 2024.