OIRA oversight of regulation is necessary, but not sufficient.
For over 30 years, Presidents of both parties have relied on the White House Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget to review and coordinate executive branch regulations and oversee regulatory policy. While OIRA oversight is necessary and important, it is not sufficient to ensure that regulations are accountable to American citizens. I believe that Congress also needs its own staff dedicated to reviewing regulatory legislation and regulations.
Regulatory review through OIRA is constrained by at least three structural limitations that would not bind a congressional office.
First, although the executive orders that guide regulatory development have required agencies to select policy options that maximize net benefits to the extent permitted by law, many statutes that grant agencies regulatory authority do not call for analyses of the impacts of those regulations, and some expressly preclude consideration of likely costs and benefits.
Second, regulations issued by independent agencies, including those that regulate financial markets, electric utilities, and telecommunications, are not currently subject to OIRA oversight under executive order. Not only are the presidential checks and balances weaker for independent regulatory agencies than for executive branch departments and agencies, but the analytical support for their regulations tends to be weaker as well.
Finally, OIRA serves the elected President. This is certainly appropriate; Presidents need an office like OIRA to oversee the activities of the disparate regulatory agencies. However, that means that OIRA’s objective analytical expertise must sometimes defer to presidential policies. As a 1999 Government Accountability Office (GAO) report stated, “[i]f Congress wants an independent assessment of executive agencies’ regulatory costs and benefits, it may have to look outside of the executive branch or outside of the federal government.”
Congress has already recognized the need for such independent assessments in the Truth in Regulating Act of 2000, which requires the GAO independently to evaluate the regulatory impact analyses that agencies prepare in support of their final regulations. But this requirement was made contingent upon the GAO receiving yearly appropriations of $5,200,000 — and these funds have never been appropriated.
A congressional office responsible for reviewing regulations could be effective with a budget much smaller than $5.2 million, as it would not need to engage in the detailed transactional review that OIRA does. Even a small staff of regulatory experts housed in a congressional agency, such as the Congressional Budget Office (CBO) or GAO, could provide an independent check on the analysis and decisions of both the regulatory agencies and OIRA. Congressional regulatory experts could also devote their attention to areas OIRA does not, such as examining the effects of regulations issued by independent regulatory agencies.
Just as the CBO provides independent estimates of the on-budget costs of legislation and federal programs, a congressional regulatory staff could provide Congress and the public independent analysis about the likely off-budget effects of new regulatory legislation and agency rules. If Congress enacts some of the other procedural changes under discussion, such as the REINS Act or a regulatory PAYGO system, some kind of regulatory equivalent to the CBO will become especially important.
In the face of ever-tightening budgetary constraints, both Congress and the executive branch will likely continue to view regulation as an attractive vehicle for achieving policy goals. A congressional staff responsible for reviewing both regulatory legislation and agency-issued rules could provide valuable additional checks and balances to ensure regulations are sensible.
