Tyranny of the Unelected

Congress passed and the president signed 125 bills into law in 2009. Your tireless federal regulatory agencies were even busier: They issued 3,503 rules and regulations.

Regulations considered in recent years have included energy-efficiency standards for clothes washers and pool heaters, SUV emission rules and the Consumer Product Safety Commission’s designs to regulate escalators (safer than unregulated stair steps, by the way) as a “consumer product.”

The year’s Federal Register – the daily depository of federal regulations – already tops 61,000 pages. According to research conducted for the Small Business Administration by economists Nicole V. and W. Mark Crain, annual off-budget regulatory costs exceed $1.7 trillion, an amount equivalent to more than half the level of the federal budget itself and on a par with the stratospheric annual deficit.

So much for the constitutional injunction, “All legislative Powers … shall be vested in a Congress of the United States.”

The unelected rule America; welcome to “regulation without representation.”

Congress – while itself no model of restraint – is the only entity accountable to us that can cut off agencies’ water.

In response to this fire hose of regulation, Rep. Geoff Davis, Kentucky Republican, and Sen. Jim DeMint, South Carolina Republican, unveiled the REINS Act (Regulations From the Executive In Need of Scrutiny) to require congressional approval of major agency rules and regulations before they are binding. Major rules are the ones costing $100 million annually.

The iron law of bureaucracy dictates that agencies can’t police themselves, so reaffirming Congress’ accountability to voters for agencies’ most costly rules is a basic principle of good government.

Regulations aren’t beneficial merely because proponents say so. Often no one has a clue whether benefits exceed costs: In the Office of Management and Budget’s annual reports to Congress on regulatory costs and benefits, fewer than 1 percent of agency final rule documents get reviewed.

Agencies will avoid putting price tags on rules they know REINS could block, so particularly controversial rules should be subject to affirmation as well, not just those explicitly designated as exceeding the $100 million threshold.

By tolerating the delegation of sweeping lawmaking power to unelected agencies, Congress has severed the power to establish regulatory programs from the responsibility for the results of those programs. If I’m a congressman, I can take credit for the Clean Air Act amendments I voted for, but blame EPA – against whom voters have no recourse – for costs, lost jobs and poor performance.

It’s an intolerable situation that REINS could help bring under control.

To start, Congress will not need to affirm all 3,500 rules; just the “major” ones costing more than $100 million annually, of which there are less than 200 each year (see chart). That’s a light workload, and affirmation could even be given via a voice vote.