How to Stop the Shadow Regulators

Legislating is out of fashion in Washington, but the current Congress does have opportunities left to do some good before riding off into the midterm sunset. A big win would be reining in out-of-control shadow regulations.

A bill in the Senate would require executive agencies to publish regulatory guidance to a single, searchable portal. The aim is to introduce more transparency to this practice as a prelude to reforming it. The measure, known as the GOOD Act, has passed the House and a Senate committee and awaits a floor vote.

Agencies already must publish draft regulations to the Federal Register. “Guidance” is different. The term refers to the letters, advisories, online FAQs, interpretations and other administrative flotsam and jetsam that agencies generate to explain how they will interpret laws and rules.

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The Biden Administration quickly ditched that reform in 2021. During the Biden years, guidance outstanding swelled to some 108,000 examples, according to Clyde Wayne Crews Jr. of the Competitive Enterprise Institute. These are likely undercounts given how hard it is to pin down exactly what counts as “guidance.” The huge spending bills of recent years are invitations to more regulation-by-guidance as agencies set rules for vaguely defined new government programs.

Read the full article in the Wall Street Journal.