OPFAIL: Establishing a Congressional Office of Political Failure Analysis

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For decades, reformers have proposed some version of a Congressional Office of Regulatory Analysis (CORA), a congressional counterpart to the regulatory oversight apparatus housed within the White House Office of Management and Budget (OMB) since Ronald Reagan’s 1981 Executive Order 12291 on Federal Regulation.

The idea warrants consideration because meaningful executive-branch disclosure of regulatory burdens still has not materialized, even after all these decades. Basic cost-benefit analysis covers only a fraction of regulatory interventions and is notoriously sketchy.

Consider the current state of regulatory disclosure. Memorial Day has passed, and it has been a full year since the publication of the last Unified Agenda of agencies’ regulatory priorities as required under the Paperwork Reduction Act, and over two years since issuance of the OMB Report to Congress on regulatory costs and benefits as required annually under the Regulatory Right-to-Know Act. This effective nullification of federal law occurs regardless of which party is in power.

But even if the required public disclosure and regulatory analysis appeared regularly, the deeper problem is that Washington still treats regulation primarily as a technical exercise requiring expert management rather than as a political phenomenon in need of restraint and reversal. Too often, progressives merely identify some perceived benefit, name an agency or rule after it, and presume the result constitutes sound regulation. But anyone who has recently purchased an EPA-regulated gas can knows regulation can just as easily make things worse.

That is why Congress should consider something broader than a CORA: an Office of Political Failure Analysis, or OPFAIL, chartered explicitly to challenge the administrative state’s permanent presumption in favor of intervention.

Traditional CORA proposals date back at least to the 1990s. One notable variant appeared in legislation sponsored by Sens. Christopher “Kit” Bond and Richard Shelby (S. 1675 / H.R. 1704). As the Senate Small Business Committee’s Summary of Legislative and Oversight Activities for the 105th Congress described it in 1999:

Patterned after the CBO, but on a smaller scale, CORA would be a professional, nonpartisan office to analyze major and non-major regulations and help Congress fulfill its oversight powers provided under the Congressional Review Act. The bill would put first priority on analysis of major rules, second priority on non-major rules recommended for analysis by a Congressional committee, and third priority on non-major rules recommended for review by individual Members of Congress. The bill would also consolidate within CORA certain activities assigned to the CBO under the Unfunded Mandates Reform Act of 1995 and duties assigned the General Accounting Office (GAO) under the Congressional Review Act. In addition, CORA would prepare an annual report on the estimated total cost of regulations.

The idea has resurfaced periodically since then, and a variant nearly achieved partial implementation in the Truth in Regulating Act of 2000. That law briefly created a pilot framework for independent Government Accountability Office review of certain economically significant rules, but it remained unfunded. As recently as 2023, the Government Accountability Office discussed CORA-type options in a report on enhancing congressional oversight of rulemaking (Options for Enhancing Congressional Oversight of Rulemaking).

Yet the administrative state of 2026 is not the same one that reformers confronted in the late 1990s. We may simply be beyond the reach of conventional good-government measures. Discussions of executive-branch restructuring and improved cost-benefit analysis remain important, as do welcome developments such as limits on Chevron deference and the reemergence of the major questions doctrine. But those reforms address symptoms more than underlying institutional incentives and can be easily circumvented by future administrations.

The deeper problem is that governing institutions overwhelmingly share the same worldview: that social and economic problems stem chiefly from “market failure,” and that administrative and legislative remedies are presumptively superior to emergent voluntary and competitive disciplinary alternatives. Increasingly, Washington dispenses even with market-failure rationales altogether and intervenes at will with dollars and compulsion.

OMB itself, once viewed as a modest check on agency excess, increasingly functions as an advocate for expansive intervention rather than a brake upon it, as detailed in 2023’s Ten Thousand Commandments with respect to changes implemented by the Biden administration. The Trump administration’s recent formal effort to establish a deregulatory record and employ the Administrative Procedure Act’s “good cause” rationale to remove rather than add rules will prove only an interlude, readily reversible under a future progressive administration. Even Trump’s one-in, ten-out deregulatory framework exists alongside and is increasingly eclipsed by his own aggressive industrial policy and economic interventionism.

The public is thus left with a growing system of coercive management insulated from both markets and meaningful accountability.

A new congressional entity should therefore not merely replicate OMB-style regulatory review on Capitol Hill as a CORA would do. It should explicitly counterbalance the federal government’s entrenched pro-regulatory bias.

Such an office would begin from a different premise: that political failure is often more prevalent, and more consequential, than market failure.

That distinction matters. Washington increasingly treats competition, innovation, consumer choice, and decentralized experimentation as processes to manage rather than as protected mechanisms that generate wealth, safety, and adaptation. Yet the very benefits invoked to justify regulation — public health, cybersecurity, financial stability, environmental quality, transportation safety, privacy, and so forth — are themselves forms of wealth that depend upon dispersed knowledge, competition, and institutional experimentation to flourish. Intervention undermines regulation, rather than embodying it.

As CEI founder Fred L. Smith Jr. long argued, markets do not merely make society richer. They also make it safer, cleaner, and fairer.

An OPFAIL would institutionalize Fred’s perspective. Rather than asking only whether agencies quantified benefits correctly, it would examine how technological changes affect regulation, how intervention displaces voluntary mechanisms, and how government routinely exceeds enumerated constitutional powers. Along with that broad reset vision, OPFAIL’s mission would encompass retrospective review, identification of and termination of obsolete programs and agencies, enforcement of regulatory reporting laws that agencies already ignore, and continual presentation of market-oriented alternatives to command-and-control regulation.

Over time, such an entity could help shift disciplinary and corrective functions away from centralized bureaucracies and back toward voluntary institutions and civil society.

In that sense, OPFAIL would function as an “Office of No” — not nihilistically, but as a constitutional check on administrative expansion. It could absorb or replace certain existing OIRA functions while relocating expertise back to Congress, where lawmaking authority properly belongs.

Skeptics of a conventional CORA are right to worry that any new institution could itself become captured. The Federal Register could continue expanding and major rules could continue proliferating. Agencies may return to routinely stretching statutes beyond recognition. Congress could resume its default mode of complaining about executive overreach while continuing to finance it and delegate power. Indeed, any congressional regulatory office staffed by conventional technocrats would simply ratify the same assumptions that dominate executive agencies today.

What we have now does not work. OPFAIL would need to be explicitly chartered not to design new interventions, but to recommend pathways out of the old ones, and to erect durable institutional barriers against new ones (such as forestalling what now appears to be an inevitable slide toward top-down federal controls in artificial intelligence).

Oversight cannot simply mean reviewing the administrative state more efficiently. It must mean challenging the underlying ideology of rule-by-experts itself — whether exercised by agencies or embodied in Congress’s own delegations and excesses.

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