Category Archives: Reform

Congress Has Already Introduced Bills to Reform #NeverNeeded Regulations

Policy makers have already waived more than 350 regulations and counting that were slowing the pandemic response and harming economic recovery. But with a 185,000-page Code of Federal Regulations and plenty more rules at the state and local levels, there is more to do. Fortunately, a number of bills have already been introduced in Congress that could help get rid of more #NeverNeeded regulations.

CEI’s Agenda for Congress has more reform ideas, though not all of them are applicable to the #NeverNeeded effort. For a guide on identifying #NeverNeeded regulations, see our handy infographic. We also a have a short paper full of reform ideas and the neverneeded.cei.org website. And of course, the #NeverNeeded social media hashtag is a continuing source of new ideas.

Fixing the Regulatory Process

Regulations from the Executive in Need of Scrutiny (REINS) Act (S. 92) 

This bill would require Congress to vote on new regulations costing more than $100 million per year. The Senate version is sponsored by Rand Paul (R-KY), Chuck Grassley (R-IA), Joni Ernst (R-IA), Todd Young (R-IN), and Ted Cruz (R-TX). Rep. Jim Sensenbrenner (R-WI) sponsors the House version. The REINS Act is a separation of powers bill intended to make sure agencies don’t go rogue and pass major rules Congress never authorized through legislation.

While the REINS Act would affect fewer than 50 rules in an average year out of more than 3,000, it would add stability to an uncertain regulatory climate. Agencies would have to stay within the bounds Congress has legislated for them, and would not be able to pass hasty “flash policy” that could hurt the virus response and economic recovery. For more, see my paper on the REINS Act.

Guidance Out Of Darkness (GOOD) Act (S.380)

Agencies are required to put new regulations through a notice-and-comment rulemaking process. This allows the public to see and contribute to draft versions of regulations before they become final. But agencies routinely avoid this transparency and accountability by enacting regulation through other means such as guidance documents, memoranda, or even press releases and blog posts. CEI’s Wayne Crews calls these extralegal rules “regulatory dark matter.” Courts routinely defer to dark matter in cases, meaning it has de facto force of law.

President Trump issued an Executive Order last year requiring agencies to make all of their guidance documents public. This is an excellent start, but the problem with Executive Orders is that the next president can undo them on a whim. Dark matter reform needs the permanence that comes with congressional legislation. The GOOD Act, sponsored by Sen. Ron Johnson (R-WI) and Rep. Mark Walker (R-NC), would increase agency transparency and accountability. It would also add stability to the regulatory environment that recovering businesses can plan around during a chaotic time. Wayne Crews has more on regulatory dark matter here.

Jones Act Repeal

Open America’s Waters Act of 2019 (S. 694) 

The Jones Act costs the economy somewhere between $656 million to $9.8 billion per year. The Open America’s Waters Act, sponsored by Sen. Mike Lee (R-UT), would repeal it entirely. The Jones Act is a shipping law from 1920 that is essentially a Buy American law for moving goods between U.S. ports. Incumbent shipping companies love the Jones Act for obvious reasons—it keeps competition out. But because of the Jones Act, shipping between U.S. ports is slow and expensive.

There is little incentive to innovate or save costs, and the ships are aged and small, since there is little need to invest in fleet improvements in a government-protected cartel. This contrasts sharply with international shipping, where the Jones Act does not apply. When competition is allowed, shipping is cheaper, faster, more reliable, and more competitive.

An effective coronavirus response needs medical supply networks to be fast, flexible, and affordable. Improved shipping will also aid in the coming economic recovery. The Jones Act has long been obsolete. Now is the ideal time to finally get rid of it, and the Open America’s Waters Act would do just that. CEI’s Mario Loyola’s forthcoming Jones Act paper has more.

Protecting Access to American Products Act (S. `1873)

If outright repeal of the Jones Act proves not possible politically, then this bill, also sponsored by Sen. Lee, is a second-best backup plan. It would streamline the Jones Act waiver process

National Environmental Policy Aact Reform

Federal Permitting Reform and Jobs Act (S. 1976)

This bill would ease environmental permitting and other obstructions that delay infrastructure projects. It builds on previous reforms in the Fix America’s Surface Transportation Act of 2015. The Senate version is sponsored by Sen. Rob Portman (R-OH) and the House version’s bipartisan sponsors include Reps. Kelly Armstrong (R-ND), Rob Bishop (R-UT), and Collin Peterson (D-MN). Congress is clearly committed to trillions of dollars of “flash policy” such as stimulus and bailouts. Much of it will be wasteful, but reforms such as this bill will help at least a little more of that money spent on projects instead of on red tape.

This list is only a beginning. Adding to it would help public health during the COVID-19 response and with economic recovery when it is safe again. Policy makers can find plenty of ideas in CEI’s new #NeverNeeded paper, as well as our Agenda for Congress.

CEI #NeverNeeded Panel Event Now on YouTube

The link is here. The speakers include my colleagues Kent Lassman, Iain Murray, and me.

For the next several weeks, there will be new online events each Tuesday featuring CEI experts on a variety of reform areas. More information is at cei.org.

Repeal for Resilience: CEI #NeverNeeded Online Event on April 21

This coming Wednesday, April 21 at 11:30 ET, I’ll be speaking in an online event with my colleagues Iain Murray and Kent Lassman. We’ll be discussing how regulatory reform can help keep people safe during the pandemic while helping minimize the economic damage.

The event will be held using the Zoom video conferencing program. If you would like to attend, the link to signup is here.

CEI NeverNeeded Event 200421

The #NeverNeeded Regulatory Reduction Commission

Over at the Washington Examiner, I propose a Regulatory Reduction Commission to act as a permanent watchdog to prevent #NeverNeeded regulations from hindering the next pandemic response. It would work like this:

First, no amendments should be allowed to the committee’s package. The vote must be straight up-or-down. The commission’s purpose is to avoid vote-trading and back-scratching. …

Second, the committee would be relatively small to reduce bargaining costs and make consensus easier to reach. It would also be bipartisan, so neither party can stack the deck when it is in power.

Third, the committee’s design has to account for the sheer size of the problem. … So it would tackle, say, five of the Code of Federal Regulations’ 50 titles per year in a 10-year rotation.

Read the whole piece here.

More regulatory reform ideas that could strengthen future crisis responses are in CEI’s Ten Thousand Commandments annual report.

CEI Commends White House for Executive Action Restricting Use of Regulatory Dark Matter

This is a CEI press statement, originally posted at CEI.org.

The White House today announced President Trump will sign two Executive Orders aimed at stopping the practice of agencies using guidance documents to effectively implement policy without going through the legally required notice and comment process. CEI Vice President for Policy Wayne Crews has long advocated executive action aimed at curtailing the use of “Regulatory Dark Matter” or guidance documents.

CEI Vice President for Policy and A Partial Eclipse of the Administrative State: A Case for an Executive Order to Rein in Guidance Documents and other “Regulatory Dark Matter” author Wayne Crews said:

“I commend President Trump and the White House for taking strong executive action aimed at restraining agencies from using guidance documents or ‘Regulatory Dark Matter’ to effectively implement policy without at least adhering to the legally required notice and comment process created by the Administrative Procedure Act nor submitting guidance to Congress and the GAO as required for review. CEI has long been making the case that the Administrative State cannot be tamed until the proliferation of guidance and dark matter is addressed. This executive order is a vital start; in the future, Congress will also need to act in order to completely stop the practice of regulating through guidance documents.

“In the absence of a Congress willing to address this important issue, it is critical for the president to sign executive orders like these in order to advance the cause of regulatory reform and cement his legacy as a deregulatory president.”

CEI President Kent Lassman said:

“Progress was made today. The President makes clear through executive orders that undemocratic, unresponsive, and unaccountable agency action is on a path to extinction. More work is required to reestablish a proper separation of powers and limits on administrative authority however the executive orders on guidance, regulatory dark matter, and transparency are a necessary disinfectant to a diseased regulatory state.”

CEI Senior Fellow Ryan Young said:

“Restoring a healthier separation of powers requires effort from all three branches. Hopefully today’s Executive Order will jump-start that needed process. Congress now needs to strengthen transparency and other protections against agency abuses with legislation, which is more permanent than an Executive Order.

“This has so far been a missed opportunity for congressional Democrats, who have an opportunity to rein in a too-powerful executive branch, and to do it with bipartisan cooperation. Over in the judicial branch, the Supreme Court needs to end the judiciary’s near-automatic acquiescence to agencies in upcoming cases concerning Chevron deference and Auer deference.”

Read more:

Re-Prioritizing Regulatory Reform

The 2019 edition of Wayne Crews’ Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State is out now. It contains basic data on the regulatory state that is harder to find than it should be: how many regulations agencies issue, how much they cost, and what is coming up next. Wayne also has several reform ideas, from a regulatory budget akin to the government’s sending budget, to improved disclosure and cost accounting standards, to more congressional involvement in the rulemaking process.

If you prefer a shorter version, Wayne and I have a piece at National Review sharing the main findings and making the case for re-prioritizing regulatory reform:

President Trump, who made regulatory reform a priority early in his term, claims to have reduced federal regulatory burdens by $23 billion in fiscal year 2018. That’s the good news. The bad news is that he has hinted at declaring premature victory and given indications of abandoning the issue altogether.

Congress should also be on board:

Congress has shown interest in executive-branch transparency in matters concerning Trump himself. It should extend that interest to regulatory agencies over which President Trump wields power.

Read the whole piece here. The new 2019 edition of Ten Thousand Commandments is here, and a summarizing press release is here.

Last Chance for the 115th: Options for Regulatory Reform

Note: this is my contribution to a series at CEI’s blog. Links to other posts by my colleagues below.

This June here at OpenMarket we’ll be looking at what the 115th Congress, which began January 3, 2017 and runs through January 3, 2019, has accomplished so far and what might still be achieved for limited government and free markets before it’s over. Read more about the Competitive Enterprise Institute’s recommendations for legislative reform here

With a possible party change in play this November in one or both chambers of Congress, the time might be now or never to pass substantive regulatory reform. President Trump is amenable to reform legislation, and both chambers of Congress have GOP majorities. A number of bills are already in play, and some have even passed the House.

While Trump’s early executive orders have helped to slow the growth of new regulations, the next president can undo them as easily as Trump enacted them, with the stroke of a pen. Permanent reform requires Congress to act, and the current favorable political winds might be changing direction as we speak.

I recently compiled a short list of active regulatory reform legislation; nothing has changed since then. I reprint the list below, and encourage Congress to act on them while they still can. And if the GOP retains congressional control past November, there is much more they can do then. For now, this may have to do:

  • REINS Act: This bill, which has passed the House four times now, would require Congress to vote on all new regulations costing more than $100 million per year. The goal is to increase elected officials’ oversight over unelected agency officials’ rulemaking. See also my paper on REINS here.
  • Regulatory Accountability Act: This bill, which has passed the House, packages six reform bills in one. Reforms include stricter disclosure requirements for agencies regarding new rules; making judicial review of regulations easier; stricter disclosure for rules affecting small businesses and nonprofits; require benefit-cost analysis for more regulations; monthly agency reports on upcoming regulations and other activities; and require a plain-language 100-word summary for proposed new regulations.
  • Regulatory Improvement Act: This bill would establish an independent commission to comb through select parts of the 178,000-page Code of Federal Regulations. The Commission would send Congress an omnibus package of redundant, obsolete, or harmful rules to eliminate. The RIA’s lead sponsor is a Democrat, which might make Republicans squeamish about giving the other team a victory. But they should pass the bill anyway. Not only would this be a positive political gesture, it’s a needed housekeeping chore that deserves to be expanded upon in future sessions of Congress.
  • GOOD Act: Neither chamber has passed this bill yet. It would alleviate the problem of regulatory “dark matter” by improving access to guidance documents that agencies issue. Agencies sometimes circumvent the legally required notice-and-comment rulemaking process by simply inserting regulations into these guidance documents.

With the Senate staying in session for most of its usual summer recess, it has no excuse for not at least putting these bills to a vote. They will boost the economy in the short and long run, which sits well with voters. And with a willing executive happy to sign them, they are easy political victories.

Read previous posts in the “Last Chance for the 115th” series: