President Trump has not drained the swamp yet – but at least it is getting smaller.
In his first year, he rolled back over 1,500 Obama-era rules that were not yet finalized, while working with Congress to eliminate 14 other major regulations.
Trump’s dictum that executive agencies eliminate two rules for each new one they adopt was an important step in slowing the expansion of federal red tape. But now in Year Two he faces an altogether different problem: How to keep the bureaucratic leviathan on the defensive?
The big success stories touted by Trump in his state of the Union Address were tax cuts and reform, and eliminating “more regulations in our first year than any administration in history.” But remember, the president is largely acting alone in his fight against the bureaucracy. You saw the faces of Democrats during his State of the Union speech when he called for “both parties to come together.”
Bipartisan collaboration in an election year? Apart from a major crisis or national emergency, forget it. As far as House Minority Leader Nancy Pelosi is concerned, Trump can just be his “slobbering self.”
But it is not hopeless. Apart from the 14 Obama “midnight regulations” Congress repealed via the Congressional Review Act, most of Trump’s regulatory rollbacks have been unilateral, executive actions. His next moves to rein in bureaucracy will have to be in the same vein.
Here are the 10 steps he needs to take to turn the D.C. swamp into a puddle:
1. Double down on two-for-one. The president should increase the RPMs high on his successful “one-in, two-out” campaign for reducing regulation and capping costs. Few are aware of it, but the agencies are planning to invert that formula at their earliest opportunity. More pressure is needed to keep them honest.
2. Pass legislation. Trump must vocally support the comprehensive regulatory reform bills that passed the House, but stalled in the Senate. These include the Regulatory Accountability Act, to improve regulatory oversight, and also the REINS Act. It would require Congress to approval major agency rules before they can take effect.
3. Address the mounting debt and deficit. Lost in the press about the tax cuts and DACA and shutdowns is the astonishing reality the deficit will be nearly $1 trillion this year. Given a federal debt topping $20 trillion, rising interest rates can kill growth. This is the kind of “emergency” I meant earlier that would force parties to work together, but it is not something anyone wants. If spending is not cut, further regulatory cuts are the only hope. Takeaway: Further swamp-draining means addressing spending and regulation simultaneously. There is a gradual recognition of the intertwined nature of spending and regulation in the growth – and rollback – of bureaucracy.
4. It is time for another Twitter campaign. Former U.S. senator and federal judge James L. Buckley argues in “Saving Congress from Itself: Emancipating the States and Empowering Their People,” federal limits on spending for the “general welfare” have been abolished, and the distinction between state and federal roles has been erased. This is a growing threat to liberty, and Trump should draw attention to it. Incredibly, federal grants to state and local governments – such as health, transportation, income payments, education, job training, social services and environmental protection – have swelled from 100 under President Lyndon Johnson to over 1,100, topping $700 billion in 2018.
5. Eliminate duplication. Trump issued an executive order (E.O. 13,781) on executive branch reorganization, looking at “where multiple Federal agencies interact in fragmented or duplicative ways.” Its proposed reforms include “merging agencies, components, programs, or activities that have similar missions.” As this suggests, if an agency is engaging in needless regulation, we just might not need the agency at all.
6. Follow the leaders. There is no need to reinvent the wheel on reducing spending on fraud, abuse, redundancy, and the like. There have been recommendations for years, such as the Heritage Foundation’s many nominations for eliminations and consolidations; former Sen. Tom Coburn’s “Wastebook“; and Citizens Against Government Waste’s “Pig Book.” Fraud, abuse, overlap, and redundancy have already been detected and documented by the Government Accountability Office and the Office of Management and Budget, and have been talked to death in Congress.
7. Call off the trustbusters. Trump needs to stop a worrisome development that threatens to unravel his successes in easing infrastructure permitting and reducing regulation. Despite his focus on cutting regulation, Trump has been overly accommodating to the idea that government should manage business deals. He called the AT&T-Time Warner merger “too much concentration of power in the hands of too few.” There is a rising trend of both Democrats and Republicans threatening antitrust action against some of our most successful firms like Google, Amazon, and Facebook for misguided reasons ranging from alleged censorship on their part to excess market power in advertising. Turning the tech sector into 21st Century public utilities – something being flirted with by Republicans and Democrats alike – would negate Trump’s successes on the regulatory front.
8. Attack bureaucratic “guidance” and support “GOOD” governance. The president needs to issue a conspicuous new executive order halting “regulatory dark matter” – the federal bureaucracy’s usurpation of the legitimate legislative role of Congress. Each year Congress passes a few dozen laws, while federal regulatory agencies annually issue over 3,000 rules and regulations. These are guidance documents, interpretive bulletins, notices, and memoranda that can carry regulatory force, but are outside the formal rule-making process. It is time for this to end. Trump has eliminated some guidance as part of his two-for-one exercise, including Labor Department guidance on franchising and contracting, and the infamous federal transgender bathroom directive. Also, President Trump should support the Guidance Out of Darkness (GOOD) Act, proposed by Wisconsin GOP Sen. Ron Johnson. It would consolidate and disclose the plethora of guidance. President Trump should expand his campaign against regulatory abuse to also target the misuse of guidance. He could update sound guidance practices; require Federal Register publication of guidance; direct an intensive OMB review of guidance; and require the web-posting of significant and secondary guidance. These steps would help address what is currently an unaccountable regulatory mess.
9. Keep the federal camel out of the technology tent. Trump should prominently resist all federal agency guidance on technology and frontier sectors where Congress has not legislated. Until Congress calls the balls and strikes on technology, no bureaucracy should try to control these vital fields of rapidly expanding knowledge.
10. Expand application of the Congressional Review Act. Trump should use the same Congressional Review Act disapproval process he wielded to block Obama’s “midnight regulations” to also rein in bureaucratic guidance – which, as should be clear by now, can be an insidious form of rulemaking. This would give Congress 60 legislative days to veto any agency’s guidance by a simple majority vote.
Balanced budgets and regulatory reform go hand-in-hand. The synergy between fiscal and regulatory sanity is real, as are the parallel risks of deficit spending and regulatory dark matter. These are the new vectors upon which the bureaucracy will continue to grow.
President Trump has been uniquely successful in enacting a tax reform package after decades of non-progress, and on streamlining some regulation even without the help of Congress. Another way he has been uniquely successful is in using social media, particularly Twitter.
That should be a warning to swamp creatures everywhere: If Trump cannot get Congress to work together on some common sense reform, he should take Twitter’s new 280-character limit to a whole new level.
Clyde Wayne Crews Jr., author of the annual report Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State, is vice president for policy and senior fellow at the Competitive Enterprise Institute.