Blame Congress for Washington's regulatory mess

Blame Congress for Washington's regulatory mess
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A  recent Rasmussen poll shows that a whopping 82 percent of voters believe that “Congress should review and approve regulations rather than allowing agencies to [impose them] on their own.” Yet, Congress shuns such responsibility because of a conflict of interest between its members and their constituents rather than a difference of opinion between Democratic and Republican voters. 

Indeed, by margins of more than four-to-one, voters of both parties want their representatives to decide on regulations. In contrast, Democrats in Congress oppose the idea, while Republicans in Congress pretend to favor it, but in fact block it. 

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Congress, of course, should not implement every passing fancy of the public, but voters wanted their representatives to take responsibility for the regulations not only with President TrumpDonald John TrumpA better VA, with mental health services, is essential for America's veterans Pelosi, Nadler tangle on impeachment, contempt vote Trump arrives in Japan to kick off 4-day state visit MORE in the White House, but also in 2013 during President Obama tenure. Indeed, polls going back decades show voters want Congress rather than the president to make the policies. No wonder. As civics course in schools once taught, to deliver “the consent of the governed” that the Declaration of Independence promised, the framers of the Constitution anticipated that the “lawmakers” in Congress would take responsibility for the laws that govern the public’s conduct. The regulations are such laws.

Congress should also not implement ideas of the public that fail to stand up to informed scrutiny, but an expert originated the idea that Congress should have to vote on the most important agency regulations. James Landis, once the New Deal’s leading light on regulation and later dean of Harvard Law School argued that Congress should vote on the major regulations. This, he argued, would give the public the benefit of agency experts writing the regulations, yet still require members of Congress to vouch for the good sense of these laws. Then, Stephen Breyer, long an expert on regulation and now a Supreme Court justice appointed by a Democratic president, showed how to make the idea work through a statute that requires Congress to vote on each regulation by a deadline with neither amendments nor filibusters. 

Congress could find the time to vote on the major regulations. There are about as many of them as votes on symbolic bills such as those naming post offices. The Constitution puts voting on the laws in Congress’s job description, not naming post offices.

Pretending to favor congressional responsibility for regulations in 1996, Congress passed, and President Clinton signed, the Congressional Review Act. It gives Congress the option of voting to disapprove regulations, but unlike the Landis proposal does not require votes to approve them.

Anxious to avoid hard choices on regulations, Congress hardly ever opts to vote on them. Moreover, the statute lets presidents shield their regulations from congressional review during the next administration by issuing them well before leaving office. All but one of the disapprovals came after the Obama administration postponed controversial regulations until after the 2016 election in the mistaken belief that the assumed future president, Hillary ClintonHillary Diane Rodham ClintonHillary Clinton slams Trump for spreading 'sexist trash' about Pelosi Gillibrand seizes on abortion debate to jump-start campaign DNC boss says candidates to be involved in debate lottery MORE, would shield them. Thus, Congress and president elected in 2016 disapproved those Obama-era regulations that were easy for Republicans to oppose. Future presidents won’t repeat such a mistake.

Because of the obvious inadequacy of the Congressional Review Act, Republicans in the House have repeatedly passed a bill, the Regulations from the Executive in Need of Scrutiny (REINS) Act, that would require Congress to vote on major regulations. Yet, these Republicans avoid having to shoulder such responsibility by including in the bill provisions sure to provoke opposition among Democrats in the Senate and thus safeguard them from the bill actually passing. One of the several poison pills is a provision that would wipe out all existing regulations that Congress does not explicit approve within 10 years yet fails to provide a realistic way for Congress to vet them all. If either party in Congress wanted responsibility for new major regulations, it could get it by introducing a version of Landis/Breyer stripped of such poison pills.

Not having to cast roll call votes on regulations makes life easier for members of Congress. Democrats can vote for agencies to protect health but leave them with the responsibility for the burdens needed to do so. Republicans can vote for agencies to reduce regulatory burdens but leave them with the responsibility for reducing regulatory protection. By limiting their votes to pleasing goals, the politicians avoid responsibility for the inevitable trade-offs between them. The upshot is polarization. Democrats are against pollution killing children and Republicans are against regulation killing jobs.

Yet, if these legislators had to take responsibility for the regulations, they would restructure regulatory statutes to give us more protection — and — fewer burdens. Instead, they leave them structured to give themselves more credit and less blame. That’s selfish. 

David Schoenbrod is Trustee professor of Law at New York Law School and author of “DC Confidential: Inside the Five Tricks of Washington.” Follow him on Twitter @DavidSchoenbrod.