Fixing a Broken Regulatory Process
There has been much discussion, including in the pages of this magazine, about the dynamics in Washington, D.C., with the 114th Congress being under the control of Republicans. Talks about compromises regarding tax reform, fixes to the Affordable Care Act and energy policy permeate discussions among insiders and talking heads. While I think all of these are worthy of action and attention from Congress, I would like to add an additional topic to the potpourri of policy: regulatory reform.
Quite simply, I believe our regulatory system, above all else in Washington, is broken. It is broken for a variety of reasons, but it is irreparable. First, let’s diagnose the problems.
Executive Overreach: Being president has to be, at times, one of the more frustrating jobs on the planet. You have an agenda and policies that you want to enact, but instead of just being able to put them in place, you have to deal with a stubborn legislative branch. This resembles the challenge that I face when trying to cajole my 2-year-old into the bathtub. But, much like I can’t just toss my 2-year-old into the tub, the president cannot take whatever action he would like simply because Congress is uncooperative. In my situation, I have to face my wife. In the president’s, he has to face the Supreme Court.
Vague Legislation: Congress likes to complain about executive overreach. In fact, it’s one of their favorite pastimes. However, part of the reason we find ourselves in situations where the executive branch is taking action is because Congress gave it the ability to do so. Additionally, when Congress passes legislation giving the executive branch power to take action, they have often done so in ways that are too vague (leaving the agency too much room for interpretation), too specific (leaving no room to make a technical correction) or entirely nonsensical.
Lack of Inter-Governmental Cooperation: A perfect example of this scenario comes from the lack of coordination between the Department of Energy and the Environmental Protection Agency. On one hand, DOE has increased efficiency standards on commercial refrigeration equipment, using methodology that assumes the use of certain refrigerants. At the exact same time, the EPA is looking to eliminate the use of some refrigerants, including those in the DOE assumptions, in certain applications. This puts manufacturers in a precarious position of having to meet new standards while also trying to guess which refrigerant will be or should be used.
Now that I’ve laid out some of the causes of regulatory dysfunction, allow me to outline some ways that these problems could be alleviated. Some are shockingly simple.
1.) The first thing I would recommend is that President Barack Obama not attempt to substitute executive action for legislative authority. This takes restraint, but it’s difficult to motivate a legislature to cooperate with you when they believe you will do what you want to do anyway. These types of actions run counter to the way our government is supposed to operate and too often lead to legal challenges.
2.) Congress should pass the REINS Act (Regulations from the Executive in Need of Scrutiny). This legislation would require an up or down vote from Congress on all major regulations (those deemed to have an impact of $100 million or more). This would help check those instances where the executive branch goes further than it should.
3.) The legislative branch should be extremely careful about passing legislation that gives regulatory bodies more power or authority, without vetting all aspects of them doing so. This may take more time, but trust me, we’ll all be happier in the end.
4.) We live in a connected world. There should be no reason for one regulatory body to begin a regulatory matter without at least communicating with agencies that may be impacted by the rule or that may be conducting a concurrent rulemaking on a similar topic. It’s that simple, pick up the phone.
I understand that regulatory reform isn’t likely to grab headlines, make campaign contributors swoon or cause an increase in popularity back home. What it would do is make government work more effectively, which seems like an idea that both parties could get behind.