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A Strong Bipartisan Case for Improving Regulations

Feb 1, 2016

When a number of U.S. Senators began looking for ways to boost economic growth while making the federal government more efficient, they identified a promising area for bipartisan action: regulation.

Members of Congress have debated scores of regulatory reform bills over the years – many with great merit – and a few ideas have now come to the fore as both effective and doable. They form the heart of the Regulatory Improvement Act¸ a discussion draft in the Senate that embraces well-known, bipartisan proposals.

The current federal regulatory system is some 70 years old and falls short in areas like transparency and public involvement. At times, regulations do not accomplish what they were designed to. Business leaders accept the necessity for regulation to protect the public and the environment, but they want federal rules to be effective, with a minimum of red tape.

The Regulatory Improvement Act would make several important improvements, especially with respect to major rules, defined as those with an economic impact of $100 million or more.

Federal agencies would involve the public earlier in the process by publishing what’s known as an advance notice of proposed rulemaking.  Not only would this step improve transparency, it would let agencies tap into the public’s wisdom sooner, helping them produce regulations that accomplish what they were meant to accomplish.

Agencies would lay out a plan ahead of time to assess how effectively a new rule is doing its job. This kind of “retrospective review” – already supported by President Obama – is easier, less expensive and more successful when designed upfront.

The discussion draft would also require independent agencies – the FTC, the FCC, SEC and the Commodity Futures Trading Commission, to name a few – to analyze the potential impact of their proposed rules, just as cabinet agencies do.

Presidents from Reagan to Obama have pressed the independent agencies to follow this practice, with mixed results. Cass Sunstein, who headed OMB’s regulatory oversight office for President Obama, used a recent Bloomberg View column to argue for putting the requirement into law.

In view of the substantial costs now imposed by such agencies on the private sector, Congress itself should require more discipline from them. A required accounting of both costs and benefits would help to prevent excessive regulatory burdens…

These proposals have already been discussed widely in Congress, with Senators James Lankford (R-OK) and Heidi Heitkamp (D-ND) taking the lead at the Senate Committee on Homeland Security and Government Affairs. In fact, the committee approved three of their bills last October on a broadly bipartisan basis. (See this Heitkamp release, and a release from Lankford’s office.)

Unfortunately, some critics are now misrepresenting the Regulatory Improvement Act as some kind of scheme for dangerous deregulation. In a letter to the editor, I responded to one such misrepresentation in a recent New York Times editorial:

The bipartisan regulatory improvement legislation under development in the Senate would not “deregulate” anything. Instead, this effort improves the process by which rules are developed to ensure greater transparency, earlier public participation in the development of major rules, high-quality regulatory analysis and periodic review to ensure that rules are accomplishing their objectives effectively.

This is hardly the stuff that would “delay and undermine the regulatory process.”

Remember, Congress had to pass the legislation that gave the agencies the power to regulate. It seems reasonable they should also be supported when the agencies use that power.

Support, after all, crosses party lines.

I believe a thriving private sector is the lifeblood of our economy. I think there are outdated regulations that need to be changed. There is red tape that needs to be cut. (Applause.) There you go! Yes! (Applause.) 

So said President Obama in this year’s State of the Union. And that applause? A bipartisan standing ovation.