Tyranny of the unelected regulators

By Wayne Crews Copyright 1999 Washington Times August 8, 1999

Congress passed and the president signed into law 241 bills in 1998. Meanwhile, federal agencies were far busier: They issued 4,899 rules and regulations - 315 more than they had one year earlier and the second-greatest number since 1984.

Costly agency regulations under consideration this year include energy efficiency standards for dishwashers, washing machines and lamp ballasts; workplace ergonomics rules; flammability standards for upholstered furniture; and emission rules for sport utility trucks.

The lack of specific final authorization by Congress of hundreds upon hundreds of such rules issued each year by unelected agency employees amounts to "regulation without representation." Congress' near-total submissiveness in the face of the agency lawmaking firehose demonstrates the depth of official Washington's disdain for the constitutional injunction that "All legislative Powers herein granted shall be vested in a Congress of the United States."

To be sure, some well-intended proposals to reform regulatory excesses are being debated, such as the bipartisan Regulatory Improvement Act sponsored by Sens. Carl Levin, Michigan Democrat, and Fred Thompson, Tennessee Republican. Their bill would increase public disclosure of regulatory benefits and costs, and require agencies to better assess the risks they regulate. Though worthwhile, such efforts to prod agencies into policing themselves better do nothing to rein in rule by the unelected, and the steady march of regulatory lawmaking will continue largely unabated.

In contrast, Rep. J.D. Hayworth, Arizona Republican, and Sen. Sam Brownback, Kansas Republican, propose restoring Congress's accountability to voters for regulatory activities. In June, they reintroduced their Congressional Responsibility Act, which would require Congress to approve major agency rules and regulations before they are binding. To them, the obvious solution to year after year of excessive and unsupervised regulation is to protect Americans at the outset from the tyranny of "laws" created by people they never elected, rather than police agencies after the fact.

Mr. Hayworth and Mr. Brownback are in good company. A Competitive Enterprise Institute polling company survey earlier this year found that 76 percent of Americans support requiring Congress to approve agency regulations before they are enacted.

Their support is no surprise. At 68,591 pages, last year's Federal Register - the depository of federal regulations - attained heights not seen since the Carter administration, this despite the 1994 takeover of Congress by presumably deregulation-minded Republicans. Costing more than $700 billion annually, off-budget regulatory costs are now well more than one-third the level of the entire 1998 federal budget of $1.6 trillion, and they rival 1997 corporate pretax profits of $734 billion.

Obviously, regulations don't necessarily do good things just because their proponents say so. But the fact is most often we have no idea whether benefits exceed costs: In the Office of Management and Budget's 1998 Report to Congress on regulatory costs and benefits, less than 1 percent of agency final rule documents were reviewed. Thus even if the Thompson-Levin approach stressing agency accountability is passed, there remain mountains and rivers to cross, on top of their enterprise being gravely undermined by the fact the real culprits are not the agencies, but Congress. By delegating too much lawmaking power to unelected agencies, Congress has severed the power to establish regulatory programs from responsibility for the results of those programs, which permits taking credit for popular legislation while scapegoating agencies, against whom voters have no recourse, for any excessive regulatory compliance costs that result.

Occasionally, someone sounds an alarm. For example, the EPA's clean air standards involving ozone and particulate matter were overturned by the D.C. Circuit Court in May on the grounds that the leeway allowed in setting the standards amounted to an unconstitutional delegation of legislative power. But even here, EPA need only come up with an "intelligible principle" to justify its selected exposure levels, and the delegation of power to the agency will likely stand. In contrast, if Congress had been required to vote on the standards as Mr. Hayworth and Mr. Brownback would require, the upcoming protracted debate over the D.C. Circuit Court of Appeal's invalidation of those rules would have been avoided.

In other cases, Congress' nonchalance about and distance from the regulatory process allows agencies to usurp lawmaking power. Examples include the Consumer Product Safety Commission's designs to regulate escalators (safer than stairsteps, by the way) as a "consumer product"; the Federal Trade Commission's threat to impose warning labels on cigars; and the FTC's efforts to require a drug company (Mylan Labs) accused of antitrust violations to "disgorge ill-gotten profits" - a power Congress never granted the agency.

Whether Congress delegates excessive power, or whether agencies simply assume it, it's time to get beyond the time wasting exercise of blaming agencies for emphasizing the very regulating they were set up to do by Congress in the first place. Once established, agencies face overwhelming incentives to expand their turf: Other than budget growth and number of employees, the only gauge of an agency's "productivity" is the regulations it issues.

So rather than solely denounce derivative agencies or scold OMB for failing to properly audit the regulatory state, Mr. Hayworth and Mr. Brownback uniquely recognize that a technocratic cost-benefit campaign will never inspire the public to mobilize on the side of regulatory reform, it will merely put people to sleep. If Congress is the source of overregulation, then regulatory reform must be seen as congressional reform, just as Congress has been the target of other popular reforms aimed at reining in government overreach - including term limits, committee reform and subjecting Congress to its own laws.

Fortunately, the Congressional Responsibility Act's strategy of curtailing excessive delegation of power to unelected federal agency employees is more sensible and vastly more workable than one dependent upon agency-driven cost-benefit analyses. Requiring elected representatives to affirm new agency rules would change rulemaking dynamics entirely, creating incentives that would drive agencies to ensure that their rules meet reasonable cost-benefit benchmarks before sending them back to a newly answerable Congress. Benefits would be maximized, because the knowledge that Congress gets the final word would inspire agencies to compete against one another to demonstrate to congressional overseers the superiority of their programs in terms of lives saved (or some other regulatory benefit), rather than think within their own square as they do now.

In regulatory policy, as with the tax code, it is solely Congress' job to make the grand judgments about where benefits lie, and to take responsibility for the regulatory priorities that emerge. Only Congress answers to voters, and only Congress can properly compare questionable rules to the alternative benefits that could be gained if the costs went instead toward regulating A instead of B, toward hiring policemen or firemen, or toward buying buckets of white paint to paint lines down the centers of dangerous rural blacktop roads.

Ultimately, the process set in motion by the Congressional Review Act would allow Congress to reapportion regulatory authority based on results achieved or unachieved, thus maximizing benefits far better than the cost-benefit requirements imposed on agencies that obsess so many reformers. Wherever Congress does a poor job ensuring net regulatory benefits, citizens have recourse at the ballot box. We will always lack that leverage with agencies, whose limited range of vision prevents their making the cross-agency comparisons necessary in setting governmentwide priorities among health, safety and economic matters.

A reform like the Congressional Responsibility Act will place each elected representative on record as either in favor of or opposed to each of 4,000-plus regulations that pour out of agencies each year. With it, our representative democracy will take a giant step toward guaranteeing citizens' right to "no regulation without representation."

Wayne Crews is the director of competition and regulation policy at the Competitive Enterprise Institute and author of the CEI report "Ten Thousand Commandments: An Annual Policy-maker's Snapshot of the Federal Regulatory State."

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