The United States Constitution gives “all legislative powers herein granted” to Congress. Neither the judicial nor the executive branch has the power to make laws, only interpret and execute them, respectively — at least in theory. In practice, things are quite different. Not only do executive branch agencies makes laws every day by issuing regulations that have the force of law, they do more lawmaking than Congress — a lot more.
In a typical year, Congress will pass between 100 and 200 laws, while regulatory agencies will pass more than 3,500 regulations. In 2011, Congress passed 81 laws while agencies published 3,573 final rules — a difference of a factor of 47. In no year since 2003 has the imbalance been less than a factor of 12. The polite term for this is regulation without representation, and it is clearly anti-democratic. The chart below is what we like to call America’s “Anti-Democracy Index”:
Congress has its reasons for delegating away so much of its legislative responsibility, none of them good. One is to shift blame away from itself. If a regulation turns out to be more expensive or less effective than planned, or even just plain unpopular, politicians can point their fingers at, say, the Environmental Protection Agency, whose employees never need to face voters, even as Congress gives them wider latitude and more power.
There is a straightforward solution to this: require Congress to vote up-or-down on high-impact regulations. If members aren’t going to take the time to write legislation, at least make them take a public stance on it so voters can reward and punish them accordingly.
Rep. Todd Young (R-Ind.) has just introduced the Regulations from the Executive In Need of Scrutiny REINS Act (H.R. 367), which would only require Congress to vote on rules expected to cost $100 million or more per year (perhaps recognizing that it might be a bit much to ask Congress for individual votes on 3,500-plus rules every year). It would still increase Congress’ workload — there are 224 such rules at various stages of the rulemaking process right now — but it would also increase congressional accountability. As tradeoffs go, this is a good deal.
The REINS Act passed the House with bipartisan support last session, when former Rep. Geoff Davis (R-Ky.) introduced the bill, but it languished in the Senate, where so much legislation goes to die (this is usually a good thing). REINS may well meet the same neglectful fate this time around, but the bill does have 121 cosponsors who will try to see that it doesn’t.
The order-of-magnitude difference between how many bills Congress passes and how many regulations agencies finalize isn’t just a major policy problem. It is anti-democratic. We are often right to be wary of the people getting what they want – most elections are proof – but voters still know a rat when they see one, and the REINS Act would improve voters’ visibility.
Congress should take back its lawmaking authority. At the very least, members should take public stances that voters can judge. The REINS Act is a pretty modest reform, as these things go. More than 90 percent of rules would still escape congressional review. But it is still an important step in reining in regulation without representation. At the very least, it would improve the Anti-Democracy Index in future years.