This is the eighth entry in a series on how the next president can reduce the scope of bureaucracy. Earlier installments have addressed a freeze on rulemaking, the role of law and economics staff in policymaking, rule review and repeal, stricter cost analysis, dissecting regulatory dark matter, boosting Unified Agenda disclosure, and tracking regulatory accumulation.
Part 8: Compile an Annual Regulatory Transparency Report Card
Measure what is measurable, and make measurable what is not so.
—Quote frequently attributed to Galileo, that, alas, probably was not his.
Improving disclosure and transparency for regulatory output and trends is one area where a new president can unambiguously undertake unilateral initiatives without statutory regulatory reform.
For example, an annual “Regulatory Transparency Report Card” detailing agency regulatory output in summary form, incorporating the current year’s data and historical tables, could be published as a chapter in the Federal Budget, the Economic Report of the President, the OMB Benefits and Costs report or in some other venue.
Before 1994, information such as numbers of proposed and final rules, and major and minor rules was collected and published in the annual Regulatory Program of the United States Government, in an appendix called “Annual Report on Executive Order 12291.” This report identified actions reviewers at the Office of Management and Budget (OMB) took on proposed and final rules. Data encompassed the preceding 10 years, with information on specific regulations sent back to agencies for improvement and reconsideration.
The Regulatory Program ended when the Clinton administration’s E.O. 12866 replaced E.O. 12291 and reaffirmed agency rather than OMB primacy.
Significant but valuable non‑cost information should also be published. Agencies and OMB could assemble both quantitative and non-quantitative data into informative charts and historical tables, enabling cross-agency comparisons. Presenting ratios of rules with, and without, benefit calculations helps reveal whether or not the regulatory enterprise does the good it claims.
Below is a sample of what should be summarized and published annually by program, agency and grand total, and with historical tables.
Annual Regulatory Transparency Report Card:
Recommended Official Summary Data by Program, Agency & Grand Total
(with Five-Year Historical Tables)
- Tallies of economically significant, major, and non-major rules by department, agency, and commission.
- Numbers and percentages of rules impacting small business.
- Depictions of sectoral regulatory accumulation.
- Numbers and percentages of regulations that contain numerical cost estimates.
- Tallies of existing cost estimates, including subtotals by agency and grand total.
- Numbers and percentages lacking cost estimates, with explanations for absence of cost estimates.
- Federal Register analysis, including numbers of pages and proposed and final rule breakdowns by agency.
- Number of major rules reported on by the GAO in its database of reports on regulations.
- Rankings of most active executive and independent rule-making agencies.
- Identification of rules that are deregulatory rather than regulatory.
- Allegedly “non-regulatory” rules that affect internal agency procedures alone (important as federal government expansion into new realms of activity displaces the private sector).
- Number of rules new to the Unified Agenda; number that are carry-overs from previous years.
- Numbers and percentages of rules facing statutory or judicial deadlines that limit executive branch options to address them.
- Rules for which weighing costs and benefits is statutorily prohibited.
- Percentages of rules reviewed by the OMB and action taken.
Some elements shown here were incorporated H.R. 2804, the ALERRT Act (Achieving Less Excess in Regulation and Requiring Transparency), that passed the House in 2014 (but not the Senate), and before that into S. 3572, the “Restoring Tax and Regulatory Certainty to Small Businesses Act” introduced by Sen. Olympia Snowe (R-Maine) in the 112th Congress, also not passed.
Regulatory highlight reporting by presidential directive would reaffirm the importance of disclosure and, in the process, expose the extent to which Congress itself is the cause of regulatory excess. After all, Congress delegated power to agencies in the first place, and imposed the statutory deadlines that can undermine regulatory review and analysis. Transparency will help shift the emphasis back to congressional accountability for what agencies do.
Also in this Series:
How A New President Can Roll Back Bureaucracy, Part 1: Freeze Regulations Temporarily
How A New President Can Roll Back Bureaucracy, Part 2: Boost Regulatory Review Resources and Free Market Law and Economics Staff at Agencies
How A New President Can Roll Back Bureaucracy, Part 3: Professionalize Review, Revision, Repeal and Sunsetting of Regulations
How A New President Can Roll Back Bureaucracy, Part 4: Expand Number of Rules Receiving Cost Analysis
How A New President Can Roll Back Bureaucracy, Part 5: Scrutinize All Agency Decrees That Affect the Public, Not Just Formal “Rules”
How A New President Can Roll Back Bureaucracy, Part 6: Enhance Rule Disclosure In the Unified Agenda of Federal Regulations
How A New President Can Roll Back Bureaucracy, Part 7: Track the Accumulation of Federal Regulations as Businesses Sectors Grow
This series builds upon recommendations in “One Nation Ungovernable? Confronting the Modern Regulatory State,” in Donald J. Boudreaux, ed., What America’s Decline In Economic Freedom Means for Entrepreneurship and Prosperity, Fraser Institute and Mercatus Center at George Mason University (2015), pp. 117-181.