Vol. 49, No. 4

In this edition

With Congress reaching agreement this year on plans to rebuild our roads, reform our schools, and expand foreign markets through global trade, the latest edition of THE RIPON FORUM looks at another area where common sense and compromise are needed in 2016 — overregulation.

Congress, Heal Thyself

Seldom has there been such widespread agreement in Washington among Republicans and Democrats, Senators and House members, and most of the general public: Congress doesn’t function and something needs to change, soon.

Making Our Auto Safety Laws Work Better

Following a record year of vehicle recalls due to safety defects, it is clear that automakers must do more to meet those standards, and congruently, NHTSA must do more to enforce them.

The FCC: Obama’s Broadband Bully

The current administration pushes federal agencies to twist existing laws until they are unrecognizable. This explains many of the Federal Communication Commission’s actions in the last few years, and it has just embarked on its boldest regulatory experiment yet – regulating our modern printing presses – broadband providers and other Internet-based media companies.

Q&A with Mike Oxley about the career of John Boehner

With John Boehner stepping down as Speaker of the House earlier this fall, the Forum sat down with former Ohio Congressman Mike Oxley to ask him about the career of his good friend and colleague.

Regulatory Reform That Restores Government Of, By, and For the People

Fixing the administrative state and reducing the broken regulatory system in America is about much more than economics. It is about holding government accountable, putting a stop to corruptive influences in Washington, and ending the proliferation of bad rules.

How Congress Can Fix Broken Government

American government today is run by dead people — past members of Congress who wrote all these statutes, and bureaucrats long gone who wrote the millions of words of regulations. Government is broken not mainly because past lawmakers were stupid, but because legislative programs almost never work out as planned.

Pen and Phone… Meet Liberty’s Meat Axe

If the “regulatory state” were a country, it would be the 10th largest, between Russia and India. Clearly, Congress has not only lost its grip on the power of the purse, it has relinquished its lawmaking power to federal agencies.

How Cutting Red Tape has Helped Fuel South Dakota’s Economic Success

When people around the country think about South Dakota, the first image that comes to mind is probably Mount Rushmore. But South Dakota is a great place to do business.

The Cost of Overregulation: America’s Small Business Owners Speak

THE RIPON FORUM recently contacted the National Federal of Independent Business with a simple request – namely, to find out how federal rules and regulations are affecting the 325,000 small and independent business owners they represent around the United States.

Fighting Government Red Tape: What the Next President Might Do

When it comes to reining in the regulatory state, there are are key differences about the2016 presidential candidates that could be a factor in the election next year.

Ripon Profile of Carlos Curbelo

The U.S. Representative from Florida’s 26th Congressional District discusses his first year in office and broadening the GOP’s base.

Regulations are the Fourth Branch of Government

Too often, American businesses are targeted by bureaucrats and regulators. Webs of red tape ensnare corporations and small mom-and-pop shops alike, and companies are faced with the tough choice of whether to continue running their businesses. The nameless, faceless government agencies that dole out staggering amounts of rules have morphed into a fourth branch of […]

Pen and Phone… Meet Liberty’s Meat Axe

Wayne Crews

The U.S. National Debt clock tells us we’re over $18 trillion in the hole.

But at least we can measure that.

Conversely, I’m here to say that, by being AWOL on addressing the “hidden tax” of federal regulation, policymakers miss the government’s greatest impact in the economy.

By my reckoning, regulations cost some $1.8 trillion per year, a “hidden tax half the level of today’s $2.5 trillion in annual federal spending. The regulatory burden exceeds individual income tax receipts of $1.39 trillion and corporate income tax of $333 billion combined.

Regulatory burdens even rival corporate pretax profits, of $2.2 trillion.

If the “regulatory state” were a country, it would be the 10th largest, between Russia and India.

If the “regulatory state” were a country, it would be the 10th largest, between Russia and India.

Clearly, Congress has not only lost its grip on the power of the purse, it has relinquished its lawmaking power to federal agencies.

Consider: There were 224 laws last year, but 3,554 rules and regulations issued by unelected bureaucrats. I like to call the multiple (16 in this case) the “Unconstitutionality Index.”

Regulation from the unelected bureaus seems to be accelerating: of the six highest ever Federal Register page counts, five have occurred under President Barack Obama. And at 74,964 on November 30, the year 2015 may set another record.

Ill-founded, overlapping and unclear regulations (like over-taxation) undermine business creation and job growth. Startups are at a record low. Hiring is risky. The uncertainty created by Washington undermines entrepreneurial breakthroughs, slowing growth.

Rudimentary constraints on the regulatory state are lacking; fewer than one percent of federal agency rules get cost-benefit analysis reviewed by overseers at the White House Office of Management and Budget.

Executive oversight is weak already, yet President Obama promises vetoes of the majority Republican 114th Congress’ reform proposals.

The President promised to veto the Regulatory Accountability Act of 2015 (H.R. 185), the signature regulatory reform bill that passed the second week of the new session. It would codify some executive orders that define central Office of Management and Budget oversight of agencies’ regulations and cost-benefit analyses, and also formalize semi-judicial proceedings for major rules and address abuse of “guidance documents.” The Senate has yet to pass the bill, but should.

This year and in both prior Congresses, the House passed the so-called REINS Act (Regulations from the Executive In Need of Scrutiny) to reverse regulation. REINS would require an expedited congressional vote on all major or significant agency rules before they are effective.

REINS should be expanded to apply to any controversial rule, whether or not tied to a cost estimate that declares it major or significant (such as the Federal Communications Commission’s net neutrality rule). Furthermore, congressional approval should extend further to guidance documents and other “regulatory dark matter” decrees.

This positive affirmation would be a major advance in accountability for each year’s thousands of regulations. The Senate hasn’t passed REINS yet — but the President promises a veto here, too.

Ultimately, only Congress can compare questionable rules to the benefits that could be gained if resources went elsewhere. So, Congress should also explore allocating regulatory cost authority among agencies in a “regulatory budget.” A “budget” could incentivize other supervisory mechanisms like central review, cost analysis, sunsets, plus inspire agencies to “compete” with one another in terms of lives saved rather than think within their own box.

Ultimately, only Congress can compare questionable rules to the benefits that could be gained if resources went elsewhere.

Perhaps the most promising option for bipartisan cooperation at the moment is a “regulatory reduction commission.” This body would initiate review, similar to the military base closure and realignment commission, of the entire existing regulatory apparatus (as distinct from the one-by-one appraisal that characterizes OMB review). The commission would compile a bundle of rules for rollback with expedited congressional vote.

Alas, today’s policy climate is quite different from the 1990s, when Republicans proposed outright elimination of agencies like the Department of Energy.

But at the very least, Congress should pass regulatory liberalization legislation in the Senate and force Obama to veto it, and get members on the record. Surely, some Democrats are not going to go to the mat for maintaining a regulatory state that harms their constituents.

Meanwhile, as the presidential election approaches, we might ponder what the executive’s “pen and phone” (a term popularized by Obama) can do to reduce rather than increase government influence in the economy.

We knew from our Constitution’s framers and we know now from the modern pen and phone era that, for better or worse, an energetic executive’s hands are far from tied. Alexander Hamilton sought a king, but settled for vigorously defending “Energy in the Executive.”

An “energetic” liberalization attitude prevailed in the executive branch during the Reagan administration and resulted in the creation of the very executive branch review and oversight process that we have now (albeit since watered down by Bill Clinton and Obama.) Reagan brought both Federal Register page counts and numbers of annual rules down by thousands.

Instead of a “pen and phone,” we can give “liberty’s meat axe” a try again.

The President must execute duly enacted laws; but the thousands of arbitrary decrees of unelected bureaucrats do not always require the same deference. The proper balance between the executive and legislative branches can be restored by a Congress that reasserts itself, especially in concert with an executive branch led by a President who knows when and how to say “no” to the seizure of power.

Clyde Wayne Crews Jr. is Vice President for Policy and Director of Technology Studies at the Competitive Enterprise Institute.