With the change in leadership of last November, Congress has prepared an assault on the regulatory bureaucracy. The new Congress’ reform proposals temporarily freeze additional regulations, require all new regulations to conform to rigorous cost-benefit analyses, and target entire agencies for extinction.
As part of this reform movement, House Speaker Newt Gingrich has suggested a monthly “Corrections Day” for Congress to fix regulatory “mistakes.” The idea has much potential. Congress has never devoted sufficient attention to fixing prior mistakes, and an allotted period to cure drafting errors or unintentional ambiguities can only be applauded. In addition, Congress can use Corrections Day to change regulation that has become outdated due to changing conditions, such as rapidly developing technology. Automatic-teller machines have revolutionized the way we do banking, but banking laws have been slow to adapt to this new technology. A Corrections Day promotes democratic decisionmaking by spurring Congress to update laws to reflect contemporary conditions.
Yet Gingrich has pushed for a Corrections Day not only to rectify legislative mistakes, but to address agency errors. In his view, Corrections Day helps force wayward bureaucratic agencies off the backs of constituents saddled with opprobrious regulation.
The speaker has placed first on his hit-list Clean Water Act’s requirement that the City of San Diego thoroughly purify sewage before piping it out into the ocean. According to Gingrich, San Diego has presented to the Environmental Protection Agency persuasive scientific evidence that a water treatment system would cost the city $10 billion with no detectable benefit to the environment, because sewage dissipates in deep ocean waters.
Far from advancing democratic decisionmaking, however, a Corrections Day in the speaker’s mold may have profoundly undemocratic implications. The symbolic importance of Corrections Day-and, we’re afraid, the political allure as well-is to allow Congress to champion constituents’ rights at the expense of a seemingly remote and unresponsive bureaucracy. The image, after all, is one of Congress fixing mistakes made by undemocratic agencies. But the mistakes that should be fixed are often of Congress’ own making. What we need is more congressional accountability for bureaucratic decisionmaking, not less.
In considering legislation, Congress is often unable to reach a decision of its own regarding regulation for a variety of reasons, such as technical complexity or political deadlock. It has become increasingly common for Congress to punt on hard policy choices, empowering bureaucrats in administrative agencies to make decisions regarding the content, application and enforcement of regulations.
Through delegation of decisionmaking authority to agencies. Congress can reap substantial benefit from constituents by appearing to combat the social issues facing the nation. Who can argue with goals of a better environment, a safer workplace, or a more consistent sentencing system?
But while members of Congress claim credit for attempting to solve the problems of the environment and crime, they distance themselves from agency regulations regarded as unfavorable by their constituents. The result is a loss of democratic accountability.
Consider the EPA ruling which rides atop Gingrich’s agenda for action. The problem of excessive costs imposed on San Diego cannot be laid solely at the EPA’s feet. To begin with, Congress, not the EPA, enacted the sewage requirement. Congress recently authorized the EPA to grant a temporary waiver to San Diego which, the EPA has indicated,is forthcoming. But San Diego now wants more-a permanent exemption from the congressionally-imposed requirement. The EPA is hardly to blame if Congress in the past has not fully placated San Diego’s desires. Gingrich, however, would seize upon this example to bolster Congress’ image as protector of the people.
Moreover, Corrections Day may be undemocratic in another sense. In the rush to make headlines, Congress may give short shrift to the merits of the proposed corrections. With only one day to consider and vote on so many “corrections,” deliberation and debate are likely to suffer. The system creates an attractive target for lobbyists-including those representing San Diego-who can bypass agency procedural requirements and focus their attention instead on members of a single congressional committee. Corrections Day may thus become a bonanza for special interests.
In addition, Corrections Day attempts to reproduce in Congress a mechanism already in place throughout the federal bureaucracy. Virtually every federal agency has a procedure to provide regulated constituents relief from costly or unfair regulations.
Instead of grandstanding, Congress should focus on ways to improve agency performance, including agency consideration of requests for waiver of regulations. For example, Congress could impose stricter requirements on agencies to report requests to suspend regulations. As of now, many agencies grant or deny requests to waive regulations without any significant outside oversight. Stricter reporting requirements would increase the potential for congressional and public oversight of the day-to-day agency application and enforcement of agency regulation. Congress might also consider waiver requests. All too often, waiver decisions by agencies are standardless, and thus not subject to meaningful external review.
As we approach the first Corrections Day, caution is in order. Although corrections are unquestionably needed, Corrections Day may become another public relations ploy through which Congress seeks to perpetuate a dangerous myth on the public-that it is not responsible for agency regulation. Congress instead should focus on the less glitzy issues of authorizing agencies to waive general regulatory requirements when the public interest so dictates and monitoring those efforts. If we provide agency bureaucrats with incentives to correct their own “mistakes,” we can increase the accountability of-rather than further politicize-the regulatory process.
