Make Government Accountable Again

May 27, 2016

In a little over eight months, a new president will take the helm of a federal bureaucracy that inflicts almost $2 trillion in costs on the American economy annually. And under current law, the American people have little opportunity to limit how the next president will use this bureaucracy.

Sure, Congress could pass a new law addressing one or two abuses, but the simple fact is that the vast majority of new laws created by the government today come from unelected bureaucrats in federal agencies, not Congress. For example, in 2014 the people's elected representatives passed 3,291 pages of new laws while federal bureaucracies issued 79,066 pages of new regulations — about 24 times as much — all without a single vote being cast.

No wonder more than three-fourths of Americans don't trust the federal government and more than two-thirds currently believe our nation is heading in the wrong direction.

It wasn't supposed to be this way.

The United States Constitution was specifically written to protect the American people from this kind of government without consent. Our founding document gives the lawmaking power exclusively to the most accountable branch of the federal government — Congress.

If a new law is too burdensome, or favors one special interest over another, then the American people should know who to blame and how to hold them accountable. That is how the system is supposed to work.

But Congress has figured out a way to avoid such accountability. Instead of doing the hard work of making tough choices on specific policy tradeoffs, Congress has instead chosen to grant broad powers to executive agencies to pursue gauzy goals.

So the Clean Air Act declares, "we shall have clean air," and then empowers bureaucrats at the Environmental Protection Agency to figure out what "clean air" is and how to achieve it. Likewise, Congress tells the Department of Education to ensure all children have a quality education and it tells the Department of Labor to create fair workplaces, without enumerating specific rules or standards to guide the bureaucratic agencies in pursuit of these goals.

But what if the EPA's clean-air regulations are not cost-effective, or the Department of Education's nationalized curriculum does not help children learn, or that the Department of Labor's well-intentioned rules actually smother employers, making it too burdensome to create new jobs?

Well, under today's status quo, the American people are out of luck. They cannot hold the EPA administrator or the secretary of education accountable for bad regulations. One vote every four years for one person is not enough. We need a better way to make the federal government accountable to the American people.

That is the primary goal of the Article I Project that we launched nearly four months ago, and it is why we are introducing the Article I Regulatory Budget Act today.

Our bill would, for the first time, require Congress to set a regulatory burden budget for each federal agency. So, for example, if Congress established a $200 billion regulatory budget for the Department of Energy, and if the cumulative compliance costs of all existing DOE regulations totaled $190 billion at the time that Congress approved their budget, the Department would have $10 billion of regulatory-cost authority remaining for any new regulations to be issued in that fiscal year.

If an agency were then to bust its regulatory budget, the Article I Regulatory Budget Act requires that each agency's appropriations bill would prohibit the agency from spending any money to implement the new budget-busting rule and provides an opportunity for Americans affected by the budget-busting rule to sue an agency that tries to enforce the rule.

The Article I Regulatory Budget Act is not a silver bullet. The Executive Branch would still retain far too many powers delegated away by Congress. But it would be a first step towards putting Congress back in charge of the federal regulatory state. And once the bureaucracy is out of the shadows and under the public's control, we can begin the hard work of winning back the people's trust and rebuilding this still exceptional nation.

Op-ed originally appeared in the Washington Examiner