This year nearly 3,300 new federal regulations have been issued, and we still have more than a month to go before Christmas.
Every one of these rules was issued by an agency that has no direct accountability to the public.
These rules affect every aspect of our life---the food we eat, the products we can buy, the hours we can enjoy public lands, and the medical interventions we can access. They permeate our lives, and God help us if we transgress them.
Individuals accused of breaking these rules may be fined, have their property seized, or face imprisonment. Likewise, businesses may suffer financial penalties, lose their license to operate or be shut down.
So what role has Congress—the people’s branch of government-- played in all this rule-making? Nearly none. When executive branch agencies plop out new rules every week, Congress mostly fails to notice or merely howls in protest.
This undemocratic system has not developed its immense power overnight, or only during the Obama administration, though it has reached new heights in the past eight years.
Regulatory reach has mushroomed over decades, while Congress’s capacity to oversee it has diminished. Congressional staff and support agencies have significantly shrunk since the late 1970s. The Office of Technology Assessment, which helped Congress grapple with the technical complexities of many regulatory matters, was abolished in 1995.
Lobbyists have been more than happy to fill the expertise gap, and work directly with bureaucracies to make new rules to their liking.
Congress is failing and it needs help. One of the most productive methods would be to create a Congressional Regulation Office (CRO), which would help lawmakers oversee the output of the sprawling executive branch offices that blanket America’s economy with rules.
The CRO might resemble the Congressional Budget Office (CBO), which offers a cost analysis of all new federal laws: at $45 million annually, CBO costs a miniscule fraction of the more-than $4 trillion federal budget (and only one percent of the money Congress spends on itself).
The CRO would perform two core functions:
First, do cost-benefit analyses of around 100 proposed agency rules per year, to provide a disinterested check on the agencies’ self-interested cost-benefit math; and
Second, do periodic analyses of existing regulations using real data. These reports could evaluate individual rules, but also provide Congress the best possible look at places where multiple agencies regulate the same realms of activity, and where regulations pile up and interact in complicated ways. They would identify areas of redundancy and costly complexity, giving Congress ammunition and guidance for rewrites.
In this way, the CRO would likely pay for itself many times over in the long run.
Without a CRO, big-picture thinking is supplied almost entirely by lobbyists who craft narratives of regulatory failure that are sometimes accurate but always self-serving.
Interest-group-driven statutory overhauls will always be inherently suspicious. CRO-driven overhauls, informed by a wide-ranging and balanced investigation of interests, would be more coherent and trustworthy.
Regulatory policy is never going to be something that the general public is deeply interested in---its mind-numbing detail and often-obscure subject matter ensure that.
But even if they can’t follow the details, Americans rightly feel that our nation has been lurching toward government by unelected technocrats.
That awareness inevitably fuels political uncertainty and resentment, and sows serious democratic legitimacy concerns—feelings that have helped to power the rise of President-elect Donald J. Trump.
By no means could a new CRO instantly solve the problem of regulatory over-reach. But right now, Congress has little chance of sorting good regulation from bad, or too much from enough.
The CRO would be an excellent first step in restoring Congress to a central role in governing ourselves, and in restoring a sorely-lacking sense of constitutional balance.
Or we can keep drowning in the regulatory tide, and bid farewell to our republic.
Kevin R. Kosar is a senior fellow at the R Street Institute, a free-market think tank, and edits LegBranch.com.
Philip A. Wallach is a senior fellow in Governance Studies at the Brookings Institution.