It’s not even Halloween yet and already more than 73,000 pages of regulations have been added to the Federal Register this year — on pace for a record 90,000. Both major party presidential candidates say they have a plan to trim red tape. But if past performance is an indicator of future action, don’t bet on it.
On Monday, Republican nominee Donald Trump said at a campaign event in Florida that he would cut 70 to 80 percent of the nation’s federal rules, which cost taxpayers and businesses almost $2 trillion every year, or about $15,000 per U.S. household.
His Democratic counterpart Hillary Clinton pledged to streamline and cut red tape for credit union and small bank lending, and ensure regulations don’t hold back small business and the economy.
Competitive Enterprise Institute Vice President for Policy Clyde Wayne Crews says the next White House occupant does wield enough regulation-slashing power to make a difference, and so does Congress
Whether either will use it is another question.
“When Ronald Reagan came in, federal regulations were around 7,500 a year and the number of pages in the Federal Register were 72,000,” Crews told Watchdog.org. “During his presidency, he cut federal register pages down to 45,000 and numbers of regulations to the 4,500 level. It wasn’t a 70 percent reduction, but close to 40 percent in terms of those measures.”
Crews added that each president since Reagan froze regulations on their first day, including President Barack Obama, though Obama’s pen-and-phone campaigns of issuing executive orders have eclipsed his regulatory cuts.
The key to substantial regulatory reform is the approach, Crews said, because regulations fall into two categories — regulations that already exist, and regulations yet to come. The president will have a tougher time with rules already on the books because they started with Congress.
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“Of course the agencies have gone on their own and they’re exercising their own pens and phones,” Crews said. “But Congress delegated a lot of that power, so that’s the constraint that any president will have.”
For existing regulations, Crews recommends sunset laws, beefed-up reviews and a commission such as that called for in the proposed Regulatory Improvement Act. Similar to the Base Realignment Commission, the Act would create a bipartisan panel to weed out federal regulations that are duplicative, unnecessary or excessive.
As for future regulations, Congress already has the Congressional Review Act at its disposal, which allows the legislative branch to quickly review and overrule federal agency regulations. It’s rarely used, however, requiring presidential approval — a mostly unattainable ambition as we saw this year when Congress tried to stop the National Labor Relations Board from enacting its rule to speed up union elections.
According to Crews, one reason the law goes unused is too little pressure. “We don’t hold Congress’ feet to the fire. Congress could already stop this stuff or raise a protest, but just doesn’t do it.”
Instead, Congress has tried to push new legislation to curtail regulations through greater scrutiny on the front side. These include the Regulations from the Executive in Need of Scrutiny Act (REINS), the Regulatory Accountability Act and the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act (SCRUB). Right now, all are languishing in Senate committees.
Congress could also use the appropriations process to block funding for implementation of rules, another tactic that is rarely employed and is made more difficult by the expanded use of omnibus all-or-nothing spending bills.
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Another idea with support from both sides of the aisle is a “one in, one out” approach. That is, for every new regulation that goes into the Federal Register, one rule comes out. This method is also known as “regulatory pay-go” and is showing promise in other countries. It has been championed here by U.S. Sen. Mark Warner, a Virginia Democrat.
“Regulatory pay-go would discourage agencies from continually adding new rules because they would be required to eliminate one outdated or duplicative regulation of the same approximate economic impact for each new rule they want to enact,” Warner wrote in 2010. “This will not only provide balance but also will help simplify or eliminate outdated rules and procedures.”
Crews predicts “one in, one out” by itself would not lead to wholesale reform of the administrative state. But by working around the edges, it creates a valuable track record for accountability and paves the way for much more potent regulatory improvements.
“I love it. Because then I’m going to look and see what they did every year,” Crews said. “And I have a hunch that as I look at it over one, two, five years, I’m going to see that they’re not doing a whole heck of a lot, and so that gives us something to sink our teeth into in the future to say, ‘see? We really do need regulatory reform.’”