Free to Prosper

A Pro-Growth Agenda for the 115th Congress

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CEI’s Agenda for the 115th Congress highlights specific steps lawmakers can take to rein in unlawful overreach by executive agencies, reduce the costs of federal regulations, and unleash America’s entrepreneurial, wealth-creating potential. These policy ideas and solutions are necessary to move America toward economic growth, prosperity, and liberty for individuals to chart their own path in a world of empowering technological advances. Learn more below about CEI’s proposals, backed by legal, economic, and policy analysis, that aim to help lift the burden off of taxpayers and bring much needed accountability to the federal government. 

Table of Contents

  • Regulatory Reform and Agency Oversight
    • Improve Regulatory Oversight and Accountability
    • Rein in Overregulation and Regulatory “Dark Matter” 
    • Strengthen Disclosure with a “Regulatory Report Card” 
    • Implement a Regulatory Reduction Commission and Sunset Procedures 
    • Require Votes on Major or Controversial Rules 
    • Implement a Regulatory Cost Budget 
    • Restrain the Runaway Administrative State by Reining in Chevron Deference 
  • Banking and Finance
    • Bring Accountability to the Unaccountable Consumer Financial Protection Bureau 
    • Oppose Regulatory Overreach in Financial Services 
    • Allow Financial Service Providers to Offer Consumers Innovative New Services through the Growth of FinTech and Crowdfunding 
    • Address Too-Big-to-Fail 
  • Labor and Employment
    • Reform the Fair Labor Standards Act 
    • Reverse the Department of Labor’s Overtime Rule 
    • Reform the Worker Classification Process
    • Improve Oversight of the Department of Labor’s Wage and Hour Division
    • Reform the National Labor Relations Act and National Labor Relations Board
    • Outlaw Union Violence
    • Prevent Implementation of the NLRB’s Ambush Election Rule
    • Prevent Implementation of the NLRB’s New Joint Employer Standard
    • Protect Worker Pensions by Reforming the Pension Benefit Guaranty Corporation’s Multiemployer Program 
    • Protect State and Local Taxpayers by Promoting Better Public Pension Governance 
  • Energy and Environment 
    • Repudiate the Paris Climate Agreement 
    • Defund the United Nations Framework Convention on Climate Change 
    • Overturn or at Least Defund the EPA’s Clean Power Plan 
    • Repeal the EPA’s Purloined Power to Legislate Climate Policy 
    • Repeal the EPA’s Carbon Dioxide Standards for New Fossil-Fuel Power Plants 
    • Oppose Carbon Taxes 
    • Prohibit Use of Social Cost of Carbon as a Justification for RegulatingEmissions 
    • Freeze and Sunset the Renewable Fuel Standard 
    • Require all Agencies to Meet Rigorous Scientific Standards 
    • Address Unaccountable Environmental Research Programs 
  • Environmental Protection on Private and Public Lands
    • Reform Environmental Regulation of Private Lands
    • Shrink the Federal Estate 
    • Unlock Federal Lands 
    • Restore Resource Production on Federal Lands 
    • Remove Bogus Climate Planning from Federal Land Policy 
  • Technology and Telecommunications 
    • Protect Internet Freedom against Burdensome Net Neutrality Mandates 
    • Oppose Taxation of Internet Access and E-Commerce 
    • Protect Privacy and Cybersecurity by Securing Private Information from Undue Government Prying 
    • Empower the Market to Protect Cybersecurity 
    • Oppose Burdensome Internet Sales Taxes 
    • Modernize Regulation of Television and Media 
    • Update Copyright for the Internet Age 
  • Transportation
    • Modernize America’s Air Travel Infrastructure in the Federal Aviation Administration Reauthorization
    • Reform Surface Transportation 
  • Food, Drugs, and Consumer Freedom 
    • Protect Consumer Freedom by Ensuring Access to Genetically Engineered Foods 
    • Streamline Regulation of Genetically Engineered Plants and Foods 
    • Repeal the National Bioengineered Food Disclosure Standard 
    • Protect Consumer Food Choice by Opposing FDA Overregulation of Food Additives 
    • Protect Consumer Food Choice by Opposing the FDA’s “Voluntary” Sodium Limits 
    • Protect Consumers’ Access to Life-Saving Drugs and Medical Devices 
    • Modernize the Rules for Evaluating New Drugs and Medical Devices 
    • Expand Patient Access to Experimental Treatments 
    • Protect Consumers’ Access to Tobacco Substitutes and Vaping Products 
    • Improve Oversight of the Consumer Product Safety Commission’s Regulation of Phthalates 
    • Improve Oversight of the Consumer Product Safety Commission’s Response to Calls to Ban Organohalogen Flame Retardants 
    • Improve Oversight and Defund Activist Research 
    • Protect Federalism and American Adults’ Access to Online Gambling Platforms 
    • Repeal the Professional and Amateur Sports Protection Act 

Introduction | By Kent Lassman

In scarcely more than two dozen words, Article I, Section 1 of the United States Constitution lays out a singular idea at the root of any serious plan for Congress.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

As a nation, we authorize one institution, Congress, to write the law. It is a significant undertaking. Federal law prescribes all manner of economic activity. It shapes personal choices in myriad unseen ways, from the products we buy to how we work.

Perhaps most expansively, statutes provide direction to a far-reaching federal regulatory apparatus. Yet today, the administration of Congress’ work has grown to an extent and scope the Founders never imagined. Unaccountable regulators rule our lives.

The body of federal law is massive. Although Congress passes and the president signs only a few hundred bills into law every year, many of these are hundreds, even thousands of pages long. Worse still, these new laws give broad discretion to federal regulators to force sweeping change to the American economy. The Code of Federal Regulations, the catalog of all federal rules and regulations imposed by agencies, runs nearly 180,000 pages. And new rules are added every year. The 2015 Federal Register reached a total page count of 80,260, the third highest in its history.

In America’s Constitutional structure, the Congress is given a primary role in government. It is where our voices are represented. Logically, it is given primacy in the Constitution ahead of the Article II and III functions of the executive and the judiciary. Matters of utmost national importance like lifetime appointments, war and peace, treaties, and governmental spending are designated for special treatment by Congress.

The Constitution’s architect, James Madison, believed the legislative was the strongest of the three branches of government. Yet in recent history, we have scarcely seen the Congress act with any discernable agenda. Partisan conflict is certainly part of the challenge; but it has been so for a long time.

An often heard contemporary line of argument suggests that, absent a clear threat to the nation, Congress cannot come together given strong ideological polarization among its members. One might call this the September 11 Theorem. In the wake of attacks on civilians at home, major legislation did pass in the 107th and 108th Congresses.

However, in the past 15 years we have seen fundamental overhauls of major sectors of the economy that cannot be explained by external threats. Beginning with the 2002 Sarbanes-Oxley reorganization of financial services and corporate governance, Medicare expansion in 2004, and moving straight through the Affordable Care Act (“Obamacare”), the 2010 Dodd-Frank financial “reform” law, and restrictions on energy, the counterargument is strong. Congress, along with its regulatory designees in the federal agencies, is hyperactive but not particularly directed.

It is time for a reckoning. At the Competitive Enterprise Institute (CEI), we believe a clear agenda is necessary to move America toward economic growth, prosperity, and liberty for individuals to chart their own paths in a world of empowering technological advances.

As legal scholar and CEI Board Member Michael S. Greve explains it, the Constitution “serves a two-fold objective: to make politics possible and to limit it.” To the first point, there are rules governing our legislative institutions. These rules have worked reasonably well to promote reasoned discourse, allow for policy experimentation, and discover, analyze, and recover when those experiments fail.

Congress must be willing to look at the evidence and revisit policy choices that have produced significant costs and negligible benefits for the typical American. The inertia of bureaucratic expansion prohibits agencies from doing this vital evaluation of the law and regulation that reach into every corner of our lives. There will be political disagreements about these issues, but we can all concur that Congress is our national institution designed to channel political disagreement toward changes in policy. And that is why Greve’s latter point is important. We must not let politics seep into every nook and cranny of national discourse. There are clear areas for commonsense prescriptions that accentuate consumer choice and reduce the negative effects of rigid, centralized regulatory dictates. We know the 115th Congress can implement basic bud-geting, cost-benefit analysis, and review systems to increase regulatory transparency and accountability.

More importantly, it is past time for Congress to assert its rightful Constitutional Ar-ticle I, Section 1 authority and fundamentally reform the unbounded regulatory state. Regulatory agencies have proven all too vulnerable to narrow political agendas and mission creep. Only Congress can bring them back in line by demanding adherence to the laws, as written by Congress and signed by the President.Congress can invigorate the rarely used, 20-year-old Congressional Review Act. Congress should institute a regulatory budget—a bipartisan idea—and pass the Regu-lations from the Executive in Need of Scrutiny (REINS) Act, which would require Congress to vote on all major rules before they can go into effect. With a management mindset for the executive branch, genuine oversight is possible. When economic failures are plain to see, there is no need for blame or finger-pointing. Fortunately, there are steps available to correct the situation, premised on a belief in the ability of individuals to make informed, sound decisions for their own well-being. At CEI, we are ready to help all political leaders understand and implement these ideas.What follows is a detailed set of recommendations, backed by legal, economic, and policy analysis, to accomplish three objectives.

First, with this report, we clearly aim to make Congress the fulcrum from which the separation of powers returns to its primary role in America’s constitutional republic.

Second, while it does not provide recommendations on the entirety of federal power, it does address the fundamentals of a free economy—an area where commentators of all stripes can agree we have much work to do.Third, in addition to the historical background and forward-looking recommenda-tions, this 2017 edition of CEI’s Agenda for Congress provides access to additional resources and scholarship. In 2015, federal regulations imposed costs of an estimated $1.885 trillion on the American economy and public. The following proposals are designed to reduce the federal regulatory cost burden and unleash the America’s entrepreneurial, wealth-creating potential. A brief description of six policy areas follows.

Regulatory and Institutional Reform.
Congress must come first. Delegation can be a management tool for the administration of large legislative mandates. It is not, however, a blanket handoff of responsibility to executive branch or “independent” agencies. Absent congressional approval, no president has authority to issue regu-lations. Specific changes to the “rules about the rules” of delegation and review, the power of the purse, which is solely the responsibility of Congress, and a reassertion of the separation of powers can reinvigorate the primary role of Congress in federal lawmaking.

Banking and Finance.
A free and growing economy cannot thrive without access to capital. A healthy financial system helps coordinate investors, enterprises, risk, and innovation to the benefit of all. Increasing the cost of access to capital or restricting it through artificial limits harmfully reorients resources toward politically favored areas of the economy and away from the most productive channels of activity. Expansionist regulatory agencies are a direct threat to the continued availability of high-quality capital throughout all parts of society.

Labor and Employment.
People adapt to change, including to developments in the market economy. By contrast, centrally managed regulation tends to become captured by vested interests and is wholly resistant to changing conditions of a modern work-place. Pro-growth policies distinguish between regulated labor prices and genuine labor productivity, and they emphasize worker flexibility.

Access to reliable, affordable energy is the hallmark of growth and essential to prosperity and human well-being. Misdirection from the essentials of energy policy toward discussion of climate—whether warming, cooling, or some other change—is politics dressed as science. Carbon-based fuels are reliable and affordable sources of energy for a growing and developing world. There is serious scientific debate about the magnitude and rate of climate change. However, the focus of Congress must be on the appropriate policy choices available. There is no planetary emergency. National and international campaigns to tax, regulate, and ban carbon fuels must be rejected in favor of affordable, plentiful, and reliable energy to make the world safer and the environment more livable.

Private property and secure property rights are essential to freedom and prosperity. Private landowners’ environmental stewardship is far superior to that of government, yet federal regulations often undermine private conservation and provide no incentives for regulators to contain costs because the costs are borne by landowners. The solution is to enact meaningful compensation for regulatory takings. Moreover, it is time to stop the locking up of federal land and restore multiple-use management and resource production, and stop the federal government from buying more private land and instead work to privatize it or transfer it to the states.

Technology and Telecommunications.
The Internet and massive investments in information technology have fueled innovation, creating tens of millions of high-skilled jobs and improving lives around the world. In a world of radical change for technology and communications, lawmakers should avoid new mandates or prohibitions in all but the most exceptional circumstances. In the unlikely event that legislative intervention is necessary, Congress should use the scalpel approach. Meanwhile, lawmakers should break out the machete to cut through convoluted statutory and regulatory schemes that have long outlived their usefulness.

Reliable transport of both persons and goods depends upon adequate infrastructure investments and management. As lawmakers consider how to improve the nation’s transportation infrastructure, they should keep in mind that the private sector is generally better than government at financing and operating well-functioning transportation systems, and generally does so at lower cost. Transportation infrastructure and operations should be paid for by those who directly benefit from their use. 

Food, Drug, and Consumer Choice.
Few matters are as important to consumers as the foods they eat, the medicines they put in their bodies, and how they choose to spend their time and money. Consumers, not government, are generally the best judges of the value and quality of individual products and services. Government regulation of consumer choices should be limited to policing the marketplace to ensure that consumers are not misled by false claims. Where safety restrictions are truly needed to protect consumers or the environment, quality standards should be based on the best available scientific data, while allowing producers and consumers the widest possible range of choice.

For more information on each of the above policy areas, please read on.