No Regulation Without Representation

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Speaker John Boehner and Majority Leader Eric Cantor plan for the House to pass this summer a bill that would require Congress to approve or disapprove major agency regulations. For elected lawmakers to be accountable for the laws coming from agencies sounds revolutionary -- that is, until one recalls that the American revolutionaries opposed regulation without representation as much as taxation without representation.

Congressional accountability has even had heralds in modern times. James Landis, the New Deal's sage of administrative law and later dean of the Harvard Law School, urged that Congress vote on agency regulations. Supreme Court Associate Justice Stephen Breyer explained in a law review how this could work in practice: Congress would enact a statute that (1) prevents regulations from taking effect until confirmed through the legislative process and (2) establishes a fast track process to ensure up-or-down votes by a deadline. The bill follows this design, but is more modest because it applies only to "major" regulations, defined chiefly as regulations that the Office of Management & Budget determines have an annual impact of $100 million or more.

Although the bill has some Democratic sponsors, many Democrats oppose it. Republicans have given Democrats an excuse by calling the bill the "Regulations from the Executive in Need of Scrutiny Act."

The bill's title reflects the belief of the chief sponsors, Rep. Geoff Davis and Senator Rand Paul, that there is too much regulation, but the bill's substance reflects a higher principle: that Congress should shoulder responsibility. Congress will undoubtedly reject some regulations, but this does not necessarily mean less regulatory protection.

Congressional responsibility would turn the tables on opportunistic legislators who vote for statutes mandating agencies to regulate, thereby claiming credit for the benefits of regulation, and then turn around and scold the agency for the cost of regulations, thereby claiming credit for protecting hometown industries. This is a recipe for regulatory stalemate. As James Landis argued, "it is an act of political wisdom to put back upon the shoulders of Congress responsibility for ‘controversial choices.'"

If they believed in taking responsibility, the Democrats could get the bill's name changed to something like the Congressional Accountability Act. Instead, they and their supporters offer a grab bag of excuses for why elected lawmakers should not be accountable for agency-made laws.

Excuse: legislators are much less knowledgeable than agency experts. Rather, the agency would, as Landis put it, continue to be "the technical agent in the initiation of rules of conduct, yet at the same time ... have [the elected lawmakers] share in the responsibility for their adoption."

Excuse: the bill would change the powers of the administration in mid-presidential term. Rather, Congress routinely changes the powers of agencies. In any event, Senate Democrats could amend the bill to postpone its taking effect until the start of the next presidential term.

Excuse: Congress is swayed by campaign contributions. Rather, big money counts for even more in the administrative process than Congress, and Congress exerts power over agencies anyway. Besides, votes trump money.

Excuse: Republicans want to block regulations that voters desire. Democrats and Republicans obviously differ about which regulations are desirable. In a representative democracy however, the right way to find out which regulations the voters desire is for their elected representatives to say "yea" or "nay." The upshot would be that agencies would talk to swing legislators before promulgating regulations. That is how we should get to sensible outcomes in a democracy, not by elected lawmakers hiding behind unelected agency officials.

Excuse: regulations will be filibustered. The bill limits debate to two hours in each house and there is no realistic way around this time limit. Quorum calls, roll calls and the like would result in some rules taking more than two hours. If Congress believes that this is too much time, it should raise the criteria for a major regulation above $100 million rather than abdicate responsibility altogether.

Excuse: Congress lacks the time to vote on the major regulations. During the 111th Congress, agencies promulgated 130 major regulations, but Congress enacted over 80 public laws naming post offices and the like. These naming bills take less time than would deciding whether to confirm an agency regulation even though the agency already crafted the rule, developed a record, and evaluated its impacts. But, the naming bills are but one instance of legislators spending much time on symbolic stances.

Enacting the bill would be a decision by the lawmakers to shift time from taking symbolic stances to taking responsibility for the most important laws that bind and protect their constituents. That would be an occasion for fireworks.

David Schoenbrod is a Trustee Professor of Law at New York Law School and is a Visiting Scholar at the American Enterprise Institute for Public Policy.  He is author of Power Without Responsibility: How Congress Abuses the People Through Delegation, from Yale University Press. 

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