Congress Can’t Control Federal Bureaucracy Without First Growing Oversight Staff, Resources: Experts

The U.S. Capitol in Washington on June 19, 2023. (Madalina Vasiliu/The Epoch Times)

Congress has little hope of ever regaining effective oversight and control of the federal regulatory bureaucracy in the executive branch without a major expansion of its authorities, staff,  and organizational resources, according to a new analysis by a conservative think tank that specializes in high technology issues.

“Every year, the White House and federal agencies issue regulations and administrative actions that directly affect the ways that Americans live and work, with limited input from members of Congress, the elected representatives of the people,” states the analysis “Empowering Regulatory Oversight: How Congress Can Hold the Administrative State Accountable.”

It is written by Dan Lips and Satya Thallam and published by the Foundation for American Innovation (FAI).

Lips, FAI’s head of policy and a Senior Fellow was formerly policy director for the Senate Committee on Homeland Security and Government Affairs (HSGAC).

Thallam has served in multiple positions in both the legislative and executive branches, as well as the private sector.

The problem is Congress has delegated so much authority to executive branch officials, departments, and agencies to issue a suffocating multitude of rules, regulations, and “guidance”—that the legislative branch has effectively become unable to ensure that the will of the American people is respected by the bureaucracy, or what Lips and Thallam describe as the Administrative State.

“In 2022 alone, agencies issued more than more than 3,000 administrative publications that could properly be thought of as regulatory, including 265 ’significant rules,' with an estimated cost of over $117 billion. While it is impossible to quantify the annual cost of federal regulations on the economy, estimates have approached $2 trillion,” Lips and Thallam explain.

“Congress enables federal agencies to issue regulations and rules by passing laws that give the executive branch the legal authority to issue regulations and administrative rules.

“But the legislative branch has largely ceded control of regulations and the administrative state to the executive. Congress has not established the necessary legislative powers, expertise, and staff resources to adequately oversee federal regulations,” they continue.

Congress Fired and Forgot

Lips and Thallam note that the Office of Information and Regulatory Affairs (OIRA)—which Congress had created in 1980 in the Office of Management and Budget (OMB) under the Paperwork Reduction Act—was converted by President Ronald Reagan into “the hub of regulatory oversight and analysis within the executive branch. However, Congress did not establish a legislative counterpart to OIRA, leaving the legislative branch dependent on an executive office led by an official nominated by the president for systematic reviews of federal regulatory activity.”

By contrast, the authors write, “Congress relies upon an internal budget office [the Congressional Budget Office] to provide prospective estimates of fiscal effects alongside the White House’s own Office of Management and Budget. No such congressional office exists for regulatory effects.”

Congress has only a few legislative committees and subcommittees, and limited budget and staffing resources within the Government Accounting Office (GAO), to assess the cost and effectiveness of proposed federal actions, but those cannot begin to match the executive branch’s ability to churn out new rules and regulations.

Lips and Thallam estimate that, based on word counts of the Code of Federal Regulations (CFR), there are currently more than 1.1 million distinct directives targeting individual citizens, businesses, and other institutions—a 175 percent increase since the total was just over 400,000 in 1968.

The House Republican majority has approved the Executive in Need of Scrutiny Act of 2023 (REINS) which requires congressional approval prior to the issuance of any new major regulation, but the authors doubt the measure can pass in the Democrat-controlled Senate or be signed by President Joe Biden.

Lips and Thallam believe it is essential that Congress, created by the founders as the first branch of government under the Constitution, must create its own Congressional Regulations Office (CRO) with the requisite staff and budget to perform just one job, reviewing and analyzing the effectiveness and costs of proposed regulations.

The authors quote former OIRA Administrator Susan Dudley saying, “Even a small staff of regulatory experts housed in a congressional agency, such as the CBO or GAO, could provide an independent check on the analysis and decisions of both the regulatory agencies and OIRA.”

Expand and Strengthen GAO

Lips and Thallam further propose that Congress expand the authority of the accounting office to review proposed executive branch rules, regulations, and guidance. This new authority would be in addition to GAO’s traditional role as the investigative arm of Congress.

Sen. Ron Johnson (R-Wis.), the ranking member of HSGAC’s permanent subcommittee for oversight and investigations, told The Epoch Times that “over time, Congress has allowed its constitutional oversight authority to atrophy by refusing to enforce its demands for information.”

Johnson added that no matter which political party controls the White House, “bureaucrats in the executive branch have taken advantage of this congressional reluctance. Two ways to restore constitutional balance and congressional oversight authority is to use the power of the purse and/or hold administration officials in contempt when they refuse to comply, and use House and Senate Sergeants-at-Arms to enforce contempt charges.”

Johnson was referring to the “inherent contempt” power of Congress to arrest and detain individuals who refuse to comply with congressional subpoenas. Congress has not resorted to this power since 1935, according to the Congressional Research Service (CRS), but could do so at any time it chooses.

Sen. Joni Ernst (R-Iowa)—one of the Senate’s leading voices against waste, fraud, and abuse in government—expressed enthusiasm for the work of GAO, telling The Epoch Times that its “ongoing effort to identify duplication and inefficiencies has produced $600 billion in cost savings for taxpayers in a little over a decade, often with bipartisan support.

“This is a great model for strengthening Congress’ ability to enhance oversight and provide unbiased regulatory analysis to counter the administrative state.”

Ernst agreed that “while control of the levers of power in Washington frequently changes hands, the size, scope, power, and duplicity of the administrative state continues to grow and expand regardless of who occupies the White House or Congress. The federal government is now involved in nearly every aspect of our lives, and it will take a concerted, long-term strategy to unwind those tentacles.”

And Sen. Marsha Blackburn (R-Tenn.) offered her own proposal for limiting the federal bureaucracy, saying to The Epoch Times that “Americans are tired of big government bureaucracy. The deep state is out of control and constantly pushing its own agenda. To rein in the federal government, we need to term limit bureaucrats.”