<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:26770.wais]
10TH ANNIVERSARY OF THE
CONGRESSIONAL REVIEW ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 30, 2006
__________
Serial No. 109-97
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
TRENT FRANKS, Arizona WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio CHRIS VAN HOLLEN, Maryland
MARK GREEN, Wisconsin JERROLD NADLER, New York
RANDY J. FORBES, Virginia DEBBIE WASSERMAN SCHULTZ, Florida
LOUIE GOHMERT, Texas
Raymond V. Smietanka, Chief Counsel
Susan A. Jensen, Counsel
Brenda Hankins, Counsel
Mike Lenn, Full Committee Counsel
Stephanie Moore, Minority Counsel
C O N T E N T S
----------
MARCH 30, 2006
OPENING STATEMENT
Page
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 1
WITNESSES
Mr. J. Christopher Mihm, Managing Director for Strategic Issues,
U.S. Government Accountability Office, Washington, D.C.
Oral Testimony................................................. 5
Prepared Statement............................................. 7
Mr. Morton Rosenberg, Esq., Specialist in American Public Law,
American Law Division of the Congressional Research Service,
Library of Congress, Washington, D.C.
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Mr. Todd F. Gaziano, Esq., Senior Fellow in Legal Studies, and
Director, Center for Legal and Judicial Studies, The Heritage
Foundation, Washington, D.C.
Oral Testimony................................................. 23
Prepared Statement............................................. 26
Mr. John V. Sullivan, Esq., Parliamentarian, Office of the
Parliamentarian, U.S. House of Representatives, Washington,
D.C.
Oral Testimony................................................. 38
Prepared Statement............................................. 39
APPENDIX
Material Submitted for the Hearing Record
Mr. J. Christopher Mihm, Managing Director for Strategic Issues,
U.S. Government Accountability Office, Washington, D.C.: Letter
dated May 12, 2006, response to question from the Subcommittee. 52
CRS Report for Congress by Mr. Morton Rosenberg ``Congressional
Review of Agency Rulemaking: An Update and Assessment of the
Congressional Review Act After Ten Years''..................... 55
10TH ANNIVERSARY OF THE
CONGRESSIONAL REVIEW ACT
----------
THURSDAY, MARCH 30, 2006
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:43 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Chris
Cannon (Chairman of the Subcommittee) presiding.
Mr. Cannon. I'd like to call the Subcommittee to order.
We're here to--by the way, thank you, Howard. Thank you for
being here. I want to thank Mr. Coble for being with us to
start the hearing.
We're here today to look at the Congressional Review Act, a
law passed to provide Congress with a tool in the oversight of
administrative rulemaking. In the last 10 years, more than
41,828 rules have been reported to Congress under the
Congressional Review Act.
When Congress passes complex legislation, it often leaves
many details to the agencies authorized to enforce the laws,
and this body must remain vigilant over those details and how
they are filled in by the agencies through congressional
oversight.
The Congressional Review Act established a mechanism for
Congress to review and disapprove Federal agency rules through
an expedited legislative process. It requires agencies to
report to Congress and to the Comptroller General with
information to help us assess the merits of the rules.
Now, today, we have a panel of experts who are here, who
are going to be discussing this process in greater detail. As
our panel of expert witnesses will attest, there are some areas
of the CRA that could be changed to make it a more effective
tool for Congress.
Today's hearing is part of the Administrative Law Process
and Procedure Project that our Subcommittee is spearheading.
The objective of the project is to conduct a nonpartisan,
academic analysis of the Federal rulemaking process.
Scholars and experts from academic and legal institutions
and organizations across the Nation are involved in this
project. The project will conclude with a detailed report,
including recommendations for legislative proposals and
suggested areas for further research and analysis to be
considered by the Administrative Conference of the United
States.
As you may recall, my legislation reauthorizing ACUS was
signed into law in the fall of 2004. The Administrative
Conference is a nonpartisan public think tank--public-private
think tank that proposes recommendations, which, historically,
have improved administrative aspects of regulatory law and
practice.
ACUS served as an independent agency charged with studying
the efficiency, adequacy, and the fairness of the
administrative procedure used by Federal agencies. Most of the
recommendations made by ACUS were implemented and, in turn,
helped save taxpayers millions of dollars.
Unfortunately, ACUS has yet to receive appropriated funds.
The Congress must fund ACUS so that it can continue to provide
valuable recommendations for improving the administrative law
process.
Justice Breyer, in his testimony to the Subcommittee, noted
that the conference's recommendations resulted in huge savings
to the public. Let's work to bring that savings back into
reality.
I look forward to testimony from our witnesses.
[The statement of Mr. Cannon follows:]
Prepared Statement of Opening Statement of the Honorable Chris Cannon,
Chair, Subcommittee on Commercial and Administrative Law, for the
Oversight Hearing on the 10th Anniversary of the Congressional Review
Act
We are here today to look at the Congressional Review Act, a law
passed to provide Congress with a tool in the oversight of
administrative rulemaking. In the last ten years, more than 41,828
rules have been reported to Congress under the Congressional Review
Act.
When Congress passes complex legislation, it often leaves many of
the details to the agencies authorized to enforce the laws. This body
must remain vigilant over those details and how they are filled in by
the agencies through congressional oversight.
The Congressional Review Act established a mechanism for Congress
to review and disapprove federal agency rules through an expedited
legislative process. It requires agencies to report to Congress and the
Comptroller General with information to help us assess the merits of
the rules.
Today we have a panel of experts here who are going to be
discussing this process in greater detail. As our panel of expert
witnesses will attest, there are some areas of the CRA that could be
changed to make it a more effective tool for Congress.
Today's hearing is part of the Administrative Law, Process and
Procedure Project that our Subcommittee is spearheading. The objective
of the Project is to conduct a nonpartisan, academic analysis of the
federal rulemaking process.
Scholars and experts from academic and legal institutions and
organizations across the nation are involved in this Project.
The Project will conclude with a detailed report, including
recommendations for legislative proposals and suggested areas for
further research and analysis to be considered by the Administrative
Conference of the United States.
As you may recall, my legislation reauthorizing ACUS was signed
into law in the fall of 2004. ACUS is a nonpartisan ``public-private
think tank'' that proposes recommendations which, historically,
improved administrative aspects of regulatory law and practice. ACUS
served as an independent agency charged with studying the efficiency,
adequacy, and fairness of the administrative procedure used by federal
agencies.
Most of the recommendations made by ACUS were implemented, and, in
turn, helped save taxpayers millions of dollars. Unfortunately, ACUS
has yet to receive appropriated funds. The Congress must fund ACUS so
that it can continue to provide valuable recommendations for improving
the administrative law process. Justice Breyer, in his testimony to the
Subcommittee, noted that the Conference's recommendations resulted in a
``huge'' savings to the public. Let's work to bring that savings back
into reality.
I look forward to the testimony from our witnesses.
Mr. Cannon. When Mr. Watt arrives, we'll recognize him for
an opening statement, if he would like to do that.
And at this point, without objection, all Members may place
their statements in the record. Hearing no objection, so
ordered.
Mr. Cannon. Without objection, the Chair will be authorized
to declare recesses of the hearing at any point. Hearing none,
so ordered.
Oh, and at this point, we'd like to recognize Mr. Coble for
an opening statement.
Mr. Coble. Mr. Chairman, I will not give an opening
statement. I will commend you for having assembled a very
distinguished panel, and I look forward to hearing from them.
I have another meeting, however, simultaneously scheduled.
So I will probably be in and out.
But I thank you, Mr. Chairman.
Mr. Cannon. I thank the gentleman.
I ask unanimous consent that Members have 5 legislative
days to submit written statements for inclusion in today's
hearing record. Without objection, so ordered.
I am now pleased and honored to introduce the witnesses for
today's hearing.
Our first witness is Chris Mihm, who is the managing
director of GAO's Strategic Issues Team, which focuses on
government-wide issues with the goal of promoting a more
results-oriented and accountable----
[Pause.]
Mr. Cannon. We would certainly not like this Committee to
be interrupted by what happens on the floor of the House.
We were talking about the Strategic Issues Team, which
focuses on government-wide issues with the goal of promoting a
more results-oriented and accountable Federal Government. The
Strategic Issues Team has examined such matters as Federal
agency transformations, budgetary aspects of the Nation's long-
term fiscal outlook, and civil service reform.
Mr. Mihm is a fellow of the National Academy of Public
Administration, and he received his undergraduate degree from
Georgetown University.
Our second witness is Mort Rosenberg, a specialist in
American public law in the American Law Division of the
Congressional Research Service. In all matters dealing with
administrative law, Mort has been the Judiciary Committee's
right hand. For more than 25 years, he has been associated with
CRS and has appeared before this Committee a number of times.
In addition to these endeavors, Mort has written
extensively on the subject of administrative law. He obtained
his undergraduate degree from New York University and his law
degree from Harvard Law School. And we welcome you back Mr.
Rosenberg.
Todd Gaziano is our third witness. He is a senior fellow in
legal studies and the director of the Center for Legal and
Judicial Studies at The Heritage Foundation. Mr. Gaziano has
served in all three branches of government.
In the executive branch, he worked at the U.S. Department
of Justice in the Office of Legal Counsel during the Reagan,
Bush, and Clinton administrations. In the judicial branch, he
was a law clerk in the 5th Circuit Court of Appeals for the
Honorable Edith Jones.
And between 1995 and 1997, he was the chief counsel to the
House Subcommittee on National Economic Growth, Natural
Resources, and Regulatory Affairs. During that time, he was
involved in regulatory reform legislation, including the
Congressional Review Act of 1996. Mr. Gaziano graduated from
the University of Chicago Law School.
Our fourth witness is Mr. John Sullivan, the
Parliamentarian for the U.S. House of Representatives. This is
an interesting experience to actually testify, isn't it?
Mr. Sullivan has served in the House of Representatives
since 1984 as a counsel for the House Armed Services Committee,
then as Assistant Parliamentarian and Deputy Parliamentarian
before he was appointed as the Parliamentarian by the Speaker
during the 108th Congress.
Prior to coming to the Hill, Mr. Sullivan served 10 years
in the Air Force. He's a graduate of the U.S. Air Force Academy
and earned his law degree from the Indiana University School of
Law.
This is only the second time that a sitting Parliamentarian
has testified in front of a House Committee. The first was on
the same subject a year after the Congressional Review Act was
passed. We truly appreciate your testimony today and your
taking time out to do this.
Just as a side note, I understand, Mr. Sullivan, that your
grandfather was Lefty Sullivan, one of the pitchers for the
1919 White Sox's. I had no idea, thank you. I am guessing that
he would have been very happy with the White Sox season last
year? That's great.
I extend to each of you my appreciation for your
willingness to participate in today's hearing. Because your
written statements will be included in the record, I request
that you limit your oral remarks to 5 minutes. Accordingly,
please feel free to summarize or highlight the salient points
of your testimony.
You will note that we have a lighting system. Green means 4
minutes, yellow means 1 minute, and red means you're out of
time. Generally, we're pretty loose with that, and depending on
whether we have people here to ask questions, we may be more or
less loose. But, I want to let you know that it's a travel day
for some folks, and so we'd like to pay some attention to that.
After you've presented your remarks, the Subcommittee
Members, in the order they arrive, will ask questions of the
witnesses, and they'll be subject to the 5-minute limit. And,
we're going to be quite strict with that one.
I ask unanimous consent that Members have 5 legislative
days to submit additional questions for the witnesses. Hearing
no objection, so ordered.
Pursuant to the directive of the Chairman of the Judiciary
Committee, I ask the witnesses to please stand and raise your
right hand to take the oath.
[Witnesses sworn.]
Mr. Cannon. The record should reflect that all of the
witnesses answered in the affirmative. You may be seated.
Mr. Mihm, would you please go ahead with your testimony?
TESTIMONY OF J. CHRISTOPHER MIHM, MANAGING DIRECTOR FOR
STRATEGIC ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE,
WASHINGTON, D.C.
Mr. Mihm. Thank you, Mr. Chairman. Mr. Chairman, Mr. Coble,
it's indeed, a great honor to appear before you today to
discuss the Congressional Review Act.
As you mentioned in your opening statement, Mr. Chairman,
the CRA was enacted to ensure that Congress has an opportunity
to review and possibly reject rules issued by executive
agencies before they become effective. Under the CRA, two types
of rules, major and nonmajor, must be submitted to both houses
of Congress and GAO before they can be implemented.
Taking your guidance, Mr. Chairman, I'll limit my comments
to discussing GAO's role under CRA and the role that the CRA
plays in the broader regulatory context. First, on the first
point--GAO's primary role under the CRA is to assess and to
report to Congress, on each major rule, the relevant agency's
compliance with certain prescribed procedural steps.
These requirements include preparation of a cost-benefit
analysis when that is required, compliance with the Regulatory
Flexibility Act, the Unfunded Mandates Reform Act--commonly
known as UMRA, the Administrative Procedures Act, Paperwork
Reduction Act, and relevant executive orders, including 12866.
GAO's report must be sent to the congressional committees
of jurisdiction within 15 calendar days of the publication of
the rule or submission of the rule by the agency, whichever is
later.
While the CRA is silent in regard to GAO's role concerning
nonmajor rules, we found that the basic information about those
rules should also be collected in a manner that can be useful
to Congress and the public. Specifically, since the CRA was
enacted in 1996, we have received and submitted reports on 610
major rules and entered over 41,000 nonmajor rules into a
database that we created and maintain.
To compile information on all of the rules--that is, major
and nonmajor--submitted to us under the CRA, we established
this database, available to the public through the Internet.
Our database gathers basic information about the 15 to 20 major
and nonmajor rules that we typically receive each day,
including the title, the agency, the type of rule, proposed
effective date, date published in the Federal Register, other
pertinent information, and any joint resolutions of disapproval
that may have been introduced.
Each year, we also seek to determine whether all final
rules covered by the CRA and published in the Federal Register
have been filed with both Congress and us. We do this review to
both verify the accuracy of our database and to determine if
agencies are complying with the CRA.
We forward a list of unfulfilled rules to OMB for their
handling, and in the past, they have disseminated the list to
the agencies, most of which file the rules or offer an
explanation of why they do not believe the rule is covered by
the CRA.
In the 10 years since the CRA was enacted, all major rules
have been filed with us in a timely fashion. For nonmajor
rules, the degree of compliance has remained fairly constant,
but not as high, with roughly 200 nonmajor rules per year not
filed with our office. And, they're the ones that we have to go
after and go back to OIRA on.
One major area of noncompliance with the CRA's requirements
has been that agencies have not always delayed the effective
date of the major rules for the required 60 days. More
specifically, agencies did not delay the effective date for 71
of the 610 major rules filed with our office.
My written statement contains the agencies' explanation for
that, and as I note in the statement, we don't view those as
valid explanations.
My second broad point this afternoon is that agencies and
GAO have provided Congress a considerable amount of information
about the forthcoming rules in response to the CRA. The limited
number of joint Congressional resolutions might suggest that
this information generates little additional oversight of
rulemaking.
However, as we have found in our review of the information
generated on Federal mandates under UMRA, the benefits of
compiling and making information available on potential Federal
actions should not be underestimated. Further, as we've also
found regarding UMRA, the availability of procedures for
congressional disapproval may have some deterrent effect.
My good CRS colleague Mort Rosenberg has reported that
several rules have been affected by the presence of the review
mechanism, suggesting that the CRA review scheme does have some
influence in helping Congress maintain some transparency and
oversight of the regulatory process.
Let me add my statement at that point, Mr. Chairman, and I
am happy to take any questions that you or any other Members of
the Subcommittee may have.
[The prepared statement of Mr. Mihm follows:]
Prepared Statement of J. Christopher Mihm
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Cannon. Thank you.
Mr. Rosenberg.
TESTIMONY OF MORTON ROSENBERG, ESQ., SPECIALIST IN AMERICAN
PUBLIC LAW, AMERICAN LAW DIVISION OF THE CONGRESSIONAL RESEARCH
SERVICE, LIBRARY OF CONGRESS, WASHINGTON, D.C.
Mr. Rosenberg. Thank you very much, Mr. Chairman and Mr.
Coble.
I'm pleased to be here again, dealing with an important
issue involved in our administrative law project. I have
submitted a report of the 10 years of action under the CRA and
also my statement for the record. Let me just make certain
points, as quickly as I'm able to. As you know, I'm verbose.
Point one is that when the House and Senate passed this
legislation, they understood that they were addressing a
fundamental institutional concern. That institutional concern
involved the development of the administrative state, the fact
that there is tremendous amount of delegation of rulemaking and
law-making authority to the agencies, that those delegations
are broad and vague, and that they're absolutely necessary.
Point two is that Congress, over the years, has been
criticized as abdicating its responsibility with respect to
oversight of those delegated authorities. The sponsors of the
legislation said, and I quote, ``In many cases, this criticism
is well founded. Our constitutional scheme creates a delicate
balance between the appropriate roles of Congress in enacting
laws and the executive branch in implementing those laws. This
legislation will help address the balance, reclaiming for
Congress some of its policymaking authority without at the same
time requiring Congress to become a super regulatory agency.''
Well, the statistics that have been compiled by GAO and
reflected in their testimony and in my report indicate that
those hopes seem to have been dashed. That, indeed, the
anticipation that the agencies, because of the existence of the
CRA, become a factor in the rule development process--a key
factor--and level the playing field and provide the kind of
regulatory accountability to Congress and the responsibility of
Congress for overseeing it, appear to have been dashed.
And indeed, events over the last decade have exacerbated
very much the CRA, in addition to the flaws of the CRA. Some of
the flaws--and the major ones, that I would pick out, the two
major ones are the lack of a screening device for Congress to
be able to identify particularly the rules that need to be
looked at by Congress and the abense of an expedited procedure
in the House for House consideration of a joint resolution of
disapproval that is, you know, concurrent with and
complementary to the Senate's procedure.
Again, as I said, compounding the problem of a flawed
mechanism is the development of a strong presidential review
process. That started with President Reagan's establishment of
the Office of Information and Regulatory Affairs as the
clearinghouse for all rules during the--in the first month of
the Reagan administration.
Those executive orders were very, very effective, and
Congress was well aware during the '80's and the--and the '90's
of how effective those executive orders were in sensitizing the
agencies to the President's agenda and diverting it from
Congress' agenda and Congress' intent in delegating authority
with respect to certain kinds of rulemakings.
Those executive orders and that concept of what has been
called the new presidentialism have been continued--were
continued during the Clinton administration and has continued
today in the Bush administration. The administration of John
Graham of OIRA has been even more effective than it was during
the Reagan administration.
Congress passed the CRA with that in mind and with the
understanding that even during the Reagan administration, there
was strong congressional opposition to presidential controls
that were being developed at that particular time.
More recently, what we have seen is what I would call a
denigration by the Executive Branch of Congress' abilities and
Congress' role in the law-making process and in the oversight
process. In a very widely cited article, the current dean of
the Harvard Law School posits the notions of the new
presidentialism, and suggests that when Congress delegates
administrative and law-making power specifically to a
department or agency head, it is at the same time making a
delegation of those authorities to the President himself,
unless the legislative delegation specifically states
otherwise.
From this, she asserts, flows the President's
constitutional prerogative to supervise, direct, and control
the discretionary actions of all agency officials. The author
states that, and I quote, ``A Republican Congress proved
feckless in rebuffing Clinton's novel use of directive power,
just as an earlier Democratic Congress, no less rhetorically
inclined, had proved incapable of thwarting Reagan's use of a
newly strengthened regulatory process.''
And she goes on to explain that, ``The reasons for this
failure are rooted in the nature of Congress and the law-making
process. The partisan and constituency interests of individual
Members of Congress usually prevent them from acting
collectively to preserve congressional power or, what is the
same thing, to deny authority to other branches of the
Government.''
She then goes on to effectively deride the ability of
Congress to restrain a President--a presidential intent on
controlling the administration of the laws. She states,
``Because Congress rarely is held accountable for agency
decisions, its interest in overseeing much administrative
action is uncertain. And because Congress' most potent tools of
oversight require collective action and presidential agreement,
its capacity to control agency discretion is restricted. But
viewed from the simplest perspective, presidential control and
legislative control of administration did not present an
either/or choice. Presidential involvement instead superimposes
an added level of political control onto the congressional
oversight system. That, taken on its own and for the reasons
just given, has notable holes.''
Dean Kagan's observations were like a blueprint for what
has been occurring during the Bush administration.
Let me conclude by saying that the CRA reflects a
recognition of the need to enhance the political accountability
of Congress and the perception of legitimacy and competence of
the administrative rulemaking process. It also rests on an
understanding that broad delegations of rulemaking authority to
agencies are necessary and appropriate and will continue for
the indefinite future.
The Supreme Court's most recent decision, rejection of an
attempted revival of the nondelegation doctrine, adds impetus
for Congress to consider several facets and ambiguities of the
current mechanism. Absent review, current trends of avoidance
of notice and comment rulemaking, the lack of full reporting of
covered rules under the CRA, limited judicial review, and what
I've just pointed out, an increasing presidential control over
the rulemaking process, is likely to continue.
As I said, there are two major things that I think should
be done to help ameliorate this. One is a screening mechanism,
and the second is expedited procedures. One might say that, you
know, putting them in legislation would be subject to
presidential veto. But I believe that you could accomplish this
by the action of Congress alone without presidential veto, and
that would be utilizing Congress' rulemaking authority.
A joint committee that has power to screen and recommend
with respect to--to the jurisdictional committees and send to
the jurisdictional committees in the House and the Senate
recommendations for disapproval resolutions can be established
by concurrent resolution.
An expedited procedure in the House needs only a resolution
of the House to establish. And I think in determining whether--
what the next step to do is it may be too politically difficult
to pass a law, this might be a way to go.
Thank you.
[The prepared statement of Mr. Rosenberg follows:]
Prepared Statement of Morton Rosenberg, Esq.
Mr. Chairman and Members of the Subcommittee,
I am very pleased to be before you again, this time to discuss a
statute, The Congressional Review Act (CRA), that I have closely
monitored since its enactment ten years ago yesterday. Your
commencement of oversight of this important piece of legislation is
opportune and perhaps propitious.
As my CRS Report on the decade of experience under the CRA details,
we know enough now to conclude that it has not worked well to achieve
its original objectives: to set in place an effective mechanism to keep
Congress informed about the rulemaking activities of federal agencies
and to allow for expeditious congressional review, and possible
nullification of particular rules. The House and Senate sponsors of the
legislation made clear the fundamental institutional concerns that they
were addressing by the Act:
As the number and complexity of federal statutory programs
has increased over the last fifty years, Congress has come to
depend more and more upon Executive Branch agencies to fill out
the details of the programs it enacts. As complex as some
statutory schemes passed by Congress are, the implementing
regulations are often more complex by several orders of
magnitude. As more and more of Congress' legislative functions
have been delegated to federal regulatory agencies, many have
complained that Congress has effectively abdicated its
constitutional role as the national legislature in allowing
federal agencies so much latitude in implementing and
interpreting congressional enactments.
In many cases, this criticism is well founded. Our
constitutional scheme creates a delicate balance between the
appropriate roles of the Congress in enacting laws, and the
Executive Branch in implementing those laws. This legislation
will help to redress the balance, reclaiming for Congress some
of its policymaking authority, without at the same time
requiring Congress to become a super regulatory agency.
The numbers accumulated over the past ten years are telling. Almost
42,000 rules were reported to Congress over that period, including 610
major rules, and only one, the Labor Department's ergonomics standard,
was disapproved in March 2001. Thirty-seven disapproval resolutions,
directed at 28 rules, have been introduced during that period, and only
three, including the ergonomics rule, passed the Senate. Many analysts
believe the negation of the ergonomics rule was a singular event not
likely to soon be repeated. Furthermore not nearly all the rules
defined by the statute as covered are reported for review. That number
is probably at least double those actually submitted for review.
Federal appellate courts in that period have negated all or parts of 60
rules, a number, while significant in some respects, is comparatively
small in relation to the number of rules issued in that period.
It was anticipated that the effective utilization of the new
reporting and review mechanism would draw the attention of the
rulemaking agencies and that its presence would become an important
factor in the rule development process. Congress was well aware at the
time of enactment of the effectiveness of President Reagan's executive
orders centralizing review of agency rulemaking, from initial
development to final promulgation, in the Office of Management and
Budget's Office of Information and Regulatory Affairs (OIRA) in the
face of aggressive challenges of congressional committees. The Clinton
Administration, with a somewhat modified executive order, but with an
aggressive posture of intervention into and direction of rulemaking
proceedings, continued a program of central control of
administration.\1\ The expectation was that Congress, through the CRA,
would again become a major player influencing agency decisionmaking.
---------------------------------------------------------------------------
\1\ See, Christopher Yoo, Steven G. Calabresi, and Anthony J.
Colangelo, ``The Unitary Executive in the Modern Era, 1945-2004,'' 90
Iowa L. Rev. 601, 690-729 (2005) (detailing the history of presidential
control of administrative actions of departments and agencies in the
Reagan, Bush I, Clinton and Bush II administrations) (Yoo).
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The ineffectiveness of the CRA review mechanism, however, soon
became readily apparent to observers. The lack of a screening mechanism
to identify rules that warranted review and an expedited consideration
process in the House that complemented the Senate's procedures, and
numerous interpretative uncertainties of key statutory provisions, may
have detered its use. By 2001, one commentator opined that if the
perception of a rulemaking agency is that the possibility of
congressional review is remote, ``it will discount the likelihood of
congressional intervention because of the uncertainty about where
Congress might stand on that rule when it is promulgated years down the
road,'' an attitude that is reinforced ``so long as [the agency]
believes that the president will support its rules.'' \2\
---------------------------------------------------------------------------
\2\ Mark Seidenfeld, ``The Psychology of Accountability and
Political Review of Agency Rules,'' 51 Duke L.J. 1059, 1090 (2001).
---------------------------------------------------------------------------
Compounding such a perception that Congress would not likely
intervene in rulemaking, particularly after 2001, has been the
emergence of what has been called by one scholar as the ``New
Presidentialism,'' \3\ that has become a profound influence in
administrative and structural constitutional law. It is a combination
of constitutional and pragmatic argumentation that holds that most of
the government's regulatory enterprise represents the exercise of
``executive power'' which, under Article II, can legitimately take
place only under the control and direction of the President; and the
claim that the President is uniquely situated to bring to the expansive
sprawl of regulatory programs the necessary qualities of
``coordination, technocratic efficiency, managerial rationality, and
democratic legitimacy'' (because he alone is elected by the entire
nation). One of the consequences of this presidentially centered theory
of governance is that it diminishes the other important actors in our
collaborative constitutional enterprise. Were it maintained that the
Congress is constitutionally and structurally unfit for running
democratic responsiveness, public-regardedness, managerial efficiency
and technocratic rationality, this scholar's suggested response is: why
bother talking with Congress about what is the best way to improve the
practice of regulatory government?
---------------------------------------------------------------------------
\3\ Cynthia R. Farina, ``Undoing The New Deal Through The New
Presidentialism,'' 22 Harv. J. of Law and Policy 227 (1998).
---------------------------------------------------------------------------
In a widely cited 2001 article,\4\ the current dean of the Harvard
Law School, posits the foregoing notions and suggests that when
Congress delegates administrative and lawmaking power specifically to
department and agency heads, it is at the same time making a delegation
of those authorities to the President, unless the legislative
delegation specifically states otherwise. From this flows, she asserts,
the President's constitutional prerogative to supervise, direct and
control the discretionary actions of all agency officials. The author
states that ``a Republican Congress proved feckless in rebuffing
Clinton's novel use of directive power--just as an earlier Democratic
Congress, no less rhetorically inclined, had proved incapable of
thwarting Reagan's use of a newly strengthened regulatory review
process.'' \5\ She explains that ``[t]he reasons for this failure are
rooted in the nature of Congress and the lawmaking process. The
partisan and constituency interests of individual members of Congress
usually prevent them from acting collectively to preserve congressional
power--or, what is the same thing, to deny authority to other branches
of government.'' \6\ She goes on to effectively deride the ability of
Congress to restrain a President intent on controlling the
administration of the laws:
---------------------------------------------------------------------------
\4\ Elena Kagan, ``Presidential Administration,'' 114 Harv. L. Rev.
2246 (2001) (Kagan).
\5\ Kagan at 2314.
\6\ Id.
Presidential control of administration in no way precludes
Congress from conducting independent oversight activity. With
or without significant presidential role, Congress can hold the
same hearings, engage in the same harassment, and threaten the
same sanctions in order to influence administrative action.
Congress, of course, always faces disincentives and constraints
in its oversight capacity as this Article earlier has noted.
Because Congress rarely is held accountable for agency
decisions, its interest is in overseeing much administrative
action is uncertain; and because Congress's most potent tools
of oversight require collective action (and presidential
agreement), its capacity to control agency discretion is
restricted. But viewed from the simplest perspective,
presidential control and legislative control of administration
do not present an either/or choice. Presidential involvement
instead superimposes an added level of political control onto a
congressional oversight system that, taken on its own and for
the reasons just given, has notable holes.\7\
---------------------------------------------------------------------------
\7\ Kagan at 2347.
Dean Kagan's observations and theories appear to have been almost a
blueprint for the presidential actions and posture toward Congress of
the current Administration.\8\
---------------------------------------------------------------------------
\8\ See Yoo at 722-30.
---------------------------------------------------------------------------
The CRA reflects a recognition of the need to enhance the political
accountability of Congress and the perception of legitimacy and
competence of the administrative rulemaking process. It also rests on
the understanding that broad delegations of rulemaking authority to
agencies are necessary and appropriate, and will continue for the
indefinite future. The Supreme Court's most recent rejection of an
attempted revival of the nondelegation doctrine \9\ adds impetus for
Congress to consider several facets and ambiguities of the current
mechanism. Absent review, current trends of avoidance of notice and
comment rulemaking, lack of full reporting of covered rules under the
CRA, judicial review, and increasing presidential control over the
rulemaking process will likely continue.
---------------------------------------------------------------------------
\9\ Whitman v. American Trucking Assn's, 531 U.S. 457 (2001).
---------------------------------------------------------------------------
There have been a number of proposals for CRA reform introduced in
the 109th Congress that address more effective utilization of the
review mechanism, most importantly a screening mechanism and an
expedited consideration procedure in the House of Representatives. Two
such bills, H.R. 3148, introduced by Rep. Ginny Brown-Waite, and H.R.
576, filed by Rep. Robert Ney, both provide for the creation of joint
committees to screen rules and for expedited House consideration
procedures. H.R. 3148 also suggests a modification of the CRA provision
that withdraws authority from an agency to promulgate future rules in
the area in which a disapproval resolution has been passed with the
enactment by Congress of a new authorization. That provision has been
seen as a key impediment to the review process. Both proposals are
expected to receive further consideration.
Mr. Cannon. You're always provocative, and I really enjoyed
that testimony. We'll come back in just a few minutes. But
those are very good points.
Mr. Gaziano, you're recognized for 5 minutes.
TESTIMONY OF TODD F. GAZIANO, ESQ., SENIOR FELLOW IN LEGAL
STUDIES, AND DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES,
THE HERITAGE FOUNDATION, WASHINGTON, D.C.
Mr. Gaziano. Good afternoon, Mr. Chairman.
Thank you for inviting me to talk about the operation of a
law that too often is neglected.
In my written testimony, I talk about some of the
democratic and separation of powers theory that supports this
legislation. But I'm going to try to confine my oral testimony
to more practical concerns.
I want to first turn to an evaluation of the effectiveness
of the CRA, and I want to talk about the three purposes of the
CRA. And the first is, as Mr. Mihm has suggested, is to advance
public record-keeping of agency rulemaking.
The CRA's legislative history makes clear that the broad
definition of a rule was chosen for several reasons; one of
them was to help Congress and its supporting agencies better
catalogue the corpus of agency rules that affect the public.
I am somewhat disappointed that compliance has not been
complete, and I actually think that the incidence of
noncompliance may be higher than that which GAO has been able
to record. Anecdotal evidence and investigation by other
Committees of this House has suggested as much.
Nevertheless, the catalogue of nearly 42,000 rules and the
public database that GAO has set up, together with the required
reports, is no doubt a very valuable resource for Congress and
for scholars of the regulatory process.
The second purpose of the Congressional Review Act is to
change agency rulemaking behavior. Now it's true that the CRA
has not been invoked as often as its sponsors and early
commentators expected. But as opposed to the ``glass is half
empty'' conclusion that Mort talked about, I think that it is
not wise to conclude that it's necessary that it's had no
impact on agency behavior and legislative accountability.
In fact, there is anecdotal evidence that when Congress
invokes the CRA, particularly during the rulemaking process, it
can have an effect. What that evidence suggests to me, Mr.
Chairman, is that it can be a tool to increase Congress'
leverage when Members choose to use it.
Now some point to the ergonomics rulemaking and say the
only time that we can enact a law is when a rule is issued,
unpopular rule is issued at the end of an Administration that
isn't supported by the incoming Administration.
In my written testimony, I explain why I'm not sure that
that is the case. But even if that is one limitation to the
rule, that's an important use of the CRA: to put a stop to such
midnight regulations.
But I do want to address one other limitation that I think
has been exaggerated, and that is the assumption that
Presidents will veto any resolution of disapproval for rules
that come out of their Administrations. Certainly, it is the
case that Presidents might consider such vetoes. But in my
written testimony, I mention three reasons why a President
might not veto such resolutions of disapproval.
But even if a President does veto such resolutions of
disapproval, let me suggest two positive outcomes from the
standpoint of democratic theory. The first is that the
President would be more directly accountable for the
regulation--both he and his Administration would not be able to
hide behind the ``Congress made me do it. We had no discretion,
but to issue this particular regulation'' excuse.
The second benefit, even of a presidential veto, of course,
that isn't immediately overridden is that once Congress
expresses its will in that way, it usually can get its--have
its will enacted in some other way, by adding a rider to a
different piece of legislation or through other means. Creative
minds, of course, can certainly influence the enforcement of a
particular rule and change its operation in the future.
The third major purpose of the Congressional Review Act is
to enhance legislative accountability for agency rulemaking.
And I submit to you that by its action or inaction, Congress is
now more accountable for agency rules. I think that the CRA was
designed by its sponsors and does make it harder for both the
President and Congress to evade their particular share of
responsibility.
To the extent that the CRA does have some limitations, I
certainly believe Congress should make further reforms. But
Congress is, ultimately, responsible.
In my remaining time, I just want to mention one
interpretive issue and three possible reforms, just almost by
name. The first interpretive issue is that that the courts have
somewhat disagreed on, and that's the scope of the limitation
on judicial review that's contained in section 805.
The key question is this. May a court consider whether a
rule that has never been submitted to a Congress is in effect?
And I submit that the better interpretation of the statute is
that the courts can properly pass on that issue.
But I'm requesting this Committee or suggesting to this
Subcommittee, respectfully, that this issue merits special
attention in the future. No matter what the courts decide about
this issue, I suggest that this Subcommittee should ensure that
there's at least limited judicial review of that triggering
mechanism in the future, even if it requires future legislative
amendment.
The other matters that I would commend to this
Subcommittee's further consideration is I do think that there
is a desperate need for an OIRA-like organization in Congress.
I feel somewhat presumptuous--it would be somewhat presumptuous
of me to suggest exactly what that is, but I also think that it
makes no sense from a separation of powers standpoint for you
to be so seriously outmanned in the regulatory review. So I
think the Committees of jurisdiction also need to significantly
increase their staff.
The two other, more dramatic proposals that I would suggest
are that Congress consider requiring congressional approval of
major rules. Not make them subject to disapproval, but actually
require affirmative congressional approval.
And the final reform that I certainly think is justified is
to prevent the proliferation of crimes from being defined in
regulations. I think that if it is worthy to criminalize,
Congress ought to define the contours of crimes.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Gaziano follows:]
Prepared Statement of Todd F. Gaziano
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Cannon. Thank you.
Mr. Sullivan, you're recognized for 5 minutes.
TESTIMONY OF JOHN V. SULLIVAN, ESQ., PARLIAMENTARIAN, OFFICE OF
THE PARLIAMENTARIAN, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON,
D.C.
Mr. Sullivan. Thank you, Mr. Chairman.
May it please the Committee, thank you for the welcome and
for the kind words about the Office of the Parliamentarian,
most especially for the gracious acknowledgment of Lefty
Sullivan, who I'm told in his Major League career lost but one
game.
My predecessor, Charlie Johnson, was with you in 1997, and
he assured me that this was a very pleasant experience. So I'm
pleased to be here.
I am glad for the opportunity to help illuminate maybe one
part of the factual predicate on which the Committee might
decide whether to adjust the CRA or whether it's currently
optimized to meet its desired ends.
As I indicate graphically in my written testimony, the CRA
has engendered a tripling of the executive communications
traffic to the Speaker. This flow of paper poses a significant
increment of workload in the institution of the House. But, of
course, this paperwork, mass though it may be, does serve a
purpose.
When I read the testimony of my learned colleagues about a
desirable deterrent effect of the act, it rings true to me. But
I'm also reminded of the last 10 or 15 years of the Cold War,
when we saw the key to our own nuclear deterrent shift
dramatically away from megatonnage and in favor of accuracy.
I think that the Committee may want to assess whether a
lesser volume of communications traffic might better optimize
the oversight of the regulatory Committees of the rulemaking
process, dwelling greater attention on a more selective
universe of rulemaking actions.
I note that the act already differentiates among rulemaking
actions on the basis of certain hallmarks of salience, and it
might be time to consider whether additional discriminators
might be sensible to constrict the flow and dwell stronger
focus on the remaining stream.
Certainly, the Office of the Parliamentarian would be
pleased to work with the Committee and with the staff on trying
to identify ways to avoid any duplication of effort or any
undue weight of paper.
I won't reiterate the rest of the written testimony, brief
though it may be. I'm pleased to be here and happy to engage
any questions you might have.
[The prepared statement of Mr. Sullivan follows:]
Prepared Statement of the Honorable John V. Sullivan
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Cannon. Thank you, Mr. Sullivan.
If I might, Mr. Sullivan, I have just a couple of
questions. Then we have a series of questions that we'll
probably send you all that you can use to help us understand a
little more about what we're doing here.
But if I might, Mr. Sullivan, you talked about Committees
of jurisdiction, meaning I suppose authorizing Committees. And
so, when you're talking about this amazing--and I just looked
at your chart--this tripling of communications. And of course,
we're organized by Committees now and have some more and less
vague Committee jurisdictions. We have Government Reform, for
instance, which would have some role here.
But if you--so when talking about the rules of jurisdiction
and whether or not it makes sense, I think Mr. Rosenberg was
talking about a Committee or Committees, would it make sense to
have a Committee that is fairly heavily staffed deal with these
issues of CRA? And that way, you don't put limiters or, I
forget the term you used for it, but some way to describe the
importance of this, but rather you have a Committee that is in
place that reviews all of it, and we go through a--maybe a
Committee process?
So instead of all the Committees of jurisdiction who would
have a person assigned, does it make sense to have a Committee,
for instance, obviously, I think this Committee, which oversees
these activities generally, would have staff to review and deal
with the paperwork and then focus, as is appropriate,
politically on what some of these regulations are and,
therefore, make the determination of importance based upon a
single Committee overseeing the complex process?
Do you have any thoughts on that?
Mr. Sullivan. That sounds worthy of your consideration, Mr.
Chairman.
As I understand it right now, until such time as the
Speaker refers the communication to the Committee of
jurisdiction over the enabling statute for the rulemaking, the
only filtering that occurs really is by the words of the
statute. The discriminators that exist under the status quo are
just textually recited in the statute.
And as I understand Mr. Rosenberg's idea, it would be to
achieve a higher level of granularity in that filtering process
by having live experts applying their notions of
discrimination, their own discriminatory sense to rulemakings
as they come in.
And that certainly is one way to refine the flow to the
regulatory Committees so that when they do hit the Committee of
jurisdiction over the Clean Water Act, the counsel who
specialize in that area will be able to bring the full force of
their more concentrated expertise on it.
Any kind of filtering process I think is worthy of
consideration. And as I said, right now, the filter is just the
text of the statute, it might be worth considering putting an
organ there.
Mr. Cannon. What I'm wondering is--I've spent a lot of my
life doing administrative procedure, rulemaking stuff. I worked
in the Reagan administration on coal mining and really created
a third-tier of coal mine reclamation regulations. It was an
amazing process early in my career.
But I'm wondering if--two things, Mr. Sullivan. First of
all, what would the rules have to--how would they have to be
changed for the House to do what I'm about to suggest? And then
how would it actually, as a practical matter, work?
As I understand, you have communications now coming to the
Speaker from the Administration, and those have increased
significantly. Would it not be fairly simple, and I'm wondering
about the effectiveness of the process to take those
communications from the Speaker and then send them to a
Committee, and that Committee would tend to look at all
regulations? And to the degree that you needed the expertise of
an authorizing Committee, there could be some sort of joint
procedure.
Now that has to be done in a way that there is actually an
appropriate use of discretion. But at some point, you have to
say this is not worth something, and somebody has to--a
Chairman has to say, ``This is not worth it, this is worth
it,'' and then follow up on that.
It would seem to me that that Committee would also require
a lot of expertise over time, and we have a rule currently that
term limits chairmen. So I'm giving you sort of an amorphous
question.
But just wondering, given the rules today, could we take a
pathway where you take all of these communications. They go
through a well staffed process, but a political process that
then works its will with the majority and minority and also
works with other Committees, authorizing Committees that have
the specific or special area expertise and possibly also with
the appropriating Committees.
What changes would you see that would have to be made to do
that? And does it make sense to even pursue that idea?
Mr. Sullivan. I think that that sort of thing could be
pursued without touching the statute, although it would be in
the jurisdiction of the Committee on Rules. The House could
ordain a 21st standing Committee and confer on it, call it the
Committee on Filtering Rulemakings.
Mr. Cannon. Let me just say that it would seem to me that
making a 21st Committee, maybe it would justify it. But what
you would have in that Committee, it would not--let me just ask
you this.
If you took a sitting Committee, either Government Reform
would be possibly appropriate or Judiciary, where I think it
actually is appropriate, and expanded one of the Subcommittees,
and maybe you got rid of term limits or something like that. So
you could have somebody who actually liked doing it, would do
it over a longer period of time and add some continuity. It
would seem to me that that makes some sense as opposed to
creating a new Committee. So I realize we're now dealing with
some pretty big things here.
Mr. Sullivan. Conceptually, it's exactly the same thing.
The House could just add a new element to the subject matter
jurisdiction of the Judiciary Committee or of the Government
Reform Committee that said ``review of executive rulemaking
actions'' and tell that Committee to have one of its
Subcommittees or a new Subcommittee become expert at filtering
and at ushering recommendations to the Committees of regulatory
jurisdiction.
Mr. Cannon. And would the House need a rule change--part of
that rule change would be and so communications to the Speaker
would then be delegated to that Committee?
Mr. Sullivan. If Rule X said that that was the Committee
that had jurisdiction over executive tenders of rulemaking
actions under the CRA, then the Speaker would refer them to
that new jurisdiction instead of his current practice of
referring them to the sundry Committees who have enacted the
enabling statutes for these rulemaking powers.
Mr. Cannon. Do you have a recommendation in mind? Your
job--I don't mean to put you in an uncomfortable position, but
your job is to figure out how the rules work, and we're now
suggesting a new context rule.
Would you put jurisdiction in all of the authorizing
Committees to review regulations, or would you see it better
working through either a new Committee or as a new Subcommittee
of one of the existing Committees?
Mr. Sullivan. I think that's too substantive a question for
a proceduralist like me.
Mr. Cannon. But procedurally, we don't have a problem doing
that if we decide to do something like that?
Mr. Sullivan. No. And the basic philosophy of the Committee
system is to develop and apply expertise in compartments, and
maybe this is a compartment in which the House would like to
develop and apply expertise on a special basis.
Mr. Cannon. And what we have now is just untenable, as your
charts show. We have this massive communication with no--we
haven't changed how we operate in the context of this massive
communication, and then we get back to what Mr. Rosenberg
called our dashed hopes or the dashed hopes of people who
wanted to see a little more of this happening. So there is some
high inconsistency here.
Let me just say, anybody else want to comment on how we
should do this? That is, a new Committee or using existing
Committees and having a new Subcommittee or as opposed to using
the current--the authorizing Committees?
Sorry, Morton?
Mr. Rosenberg. I could comment on that, just to be
provocative.
What we have here is a congressional process. You know, in
order to do what the framers of this legislation wanted to do,
they had two houses involved. And what they--what wasn't
thought through or didn't realize the problems at the time is
that in order to--there are so many authorizing Committees,
jurisdictional Committees out there, as you're pointing out,
what might be a solution is not simply a special Committee, but
a joint Committee, which has only the authority to recommend
with respect to who will screen, has staff enough to make some
analyses of rules that come over, pick out the particular ones
that appear to be appropriate for congressional review.
There would be House Members and Senate Members. And the
recommendations would be sent to the jurisdictional Committees
of each House with a recommendation, if it's such, that they
exercise their authority and issue a--you know, file a
resolution of disapproval.
It has a lot of benefits, it seems to me, because, one, it
provides the screening mechanism necessary, it provides some
necesary expertise, and it also may take care of the political
problem of taking away jurisdiction from current jurisdictional
Committees.
What happens is those Committees have recommendations, and
those recommendations are up to the jurisdictional Committees
to go to the expedited procedures, you know, to formulate that.
I think that while your Committee would be a good one with
regard to looking at this, it would probably be very difficult
to get everybody to agree, even a House resolution, you know,
of vesting you with all that authority. It's a problem that we
see with the House Homeland Security Committee.
Mr. Cannon. I'm hoping most people think this is boring and
not worthy of their attention. [Laughter.]
Mr. Rosenberg. Just one idea. I'm for a separate Committee,
and I'm much more for a joint Committee that helps both houses
do the job.
Mr. Cannon. Thank you.
Mr. Gaziano. In my written testimony, I said that I'm
reluctant to say too much about this because the perfect
sometimes is the enemy of the good in reform. And I think that
the imperative is that you do something, that you create some
sort of structure and increase staff to help with this.
But I--but I do think I know why, and here I may be
stepping out of my--you know, into my personal memory versus
the public record--why the parliamentarian was given the task
of making referrals because: that was who everyone could agree
with. That's the parliamentarian's traditional job.
I think there was an understanding that it would
significantly increase their office workload. But let me
suggest a couple of possibilities. One certainly is that
Congress recognize that the parliamentarian's office at least
needs sufficient increased manpower and staff or an adjunct or
whatever to help with those referrals.
There is a concern by the authorizers that any other
Committee but their Committee wouldn't have the expertise to
know when the rulemaking is a good or bad rulemaking. So I
think that you want to avoid the perfect being the enemy of the
good.
Another possibility is to create more expertise somewhere
else in Congress, whether it then advises the parliamentarian's
office or the individual Committees. But I think part of what
the permanent structure of that Committee would be is expertise
in cost-benefit analysis and some cost-cutting expertise about
the rulemaking process.
So there would be some permanent staff like the OIRA staff.
And beyond that, you know, I think that there are these other
issues and concerns that might come up. I would love for this
Committee or any Committee to retain the jurisdiction, but I
would fear that your ``below the radar screen'' approach might
not go unnoticed as the legislation moved forward.
Mr. Cannon. And here I thought you were a person of great
historical perspective. Given the attention these matters have
had, I'm fairly sure the radar screen is not so sensitive.
I'd like to apologize for Mr. Watt, who--we had late votes
and then an emergency meeting, and so he was not able to get
down here and join us.
And I have just one other question sort of following up on
this question and going back, I think, really to Mr. Mihm and
Mr. Rosenberg talking about dashed hopes or talking about the
number of reviews and these sorts of things.
What if you changed the premise of CRA away from a
disapproval and to a requirement that Congress affirmatively
act. Now that changes the nature of this discussion about what
Committee it would go through. What it would mean, as a
practical matter, is that we pass a lot of legislation all at a
time, but it would--it would meet many of the criticisms we've
had of the CRA.
Assume for a moment, it's politically possible. Does that
make sense? And I think that most of you all would have some
comment on that.
Do you want to start? Go ahead, Mort. Sure.
Mr. Rosenberg. Seven years ago I suggested that in an
article in the Administrative Law Review, That the most
effective way of controlling administrative regulations is
through a process whereby there has to be affirmative approval
of regulations.
This creates some problems. If you have all rules that are
subject to it, you have an enormous volume of rules that are
going to come across. But I think that problem could be solved,
and I addressed that in the article that I wrote in 1999. I
believe that a screening committee that would deal with this
could use a deeming process and take care of about 99.9 percent
of the rules.
That is, deeming that rules that are sent over passed on a
particular day, a CRA Wednesday that takes place each month,
and you wouldn't have more than a 30- or a 60-day delay for
99.9 percent of the rules. And those that are pinpointed as
needing more reviewwould then go through a more rigorous
approval process.
I think it could be created. I think it's constitutional.
And assuming it's politically possible, I think that is the
most viable way to go and the most effective way from Congress'
institutional point of view.
Mr. Cannon. Would you get us a copy of the article you
referred to for the record
Mr. Rosenberg. Certainly.
Mr. Cannon. I'd appreciate that.
Chris?
Mr. Mihm. Mr. Chairman, we haven't looked at this issue
directly, but I'd offer just two kind of broad observations on
this.
One is that in response to your earlier question and some
of Mr. Sullivan's charts, we talked about the enormous increase
in workload and burden on the Congress that was required to
review these things after the fact. It probably, that would be
augmented several fold perhaps if Congress wanted to review
them before implementation, that is, to pass on them.
Again, it's Congress' judgment as to whether or not it
wants to go down that road. But I would just observe that it
would probably entail quite a bit of additional work on behalf
of the Congress, even taking, I think, context, some point that
you could just focus on the major rules which would be the 610
or so.
The second thing that I would just observe, and this gets
back to the broader agenda of this Subcommittee and in
particular the hearing that you held last November, is that the
Congress may want to spend more time looking more at the back
end of the regulatory process.
That is, you know, one of the things that's really flown
below the radar screen is after regulations are put in place,
we almost never go back and say, ``Gee, did we get what was
promised as a result of this?'' You know, we were promised
either savings or better health or increased, you know, safety
or whatever the case may be.
And in many cases, that probably plays out, but I'm willing
to bet in some cases it does not. And we never go back and look
at that. And so, a kind of a more retrospective analysis or
focus on retrospective analysis we think would be very
beneficial.
Mr. Cannon. Does that mean like a 3-year sunset? So suppose
for a moment you had a joint Committee or each house had a
Committee, and we had an expedited process. So something worked
here. Would it make sense then to add a sunset to regulations
so they came up automatically for political/congressional
review?
Mr. Mihm. I'm not sure that I can go so far--I mean, we
haven't done the work to justify whether or not there would be
sunset. But certainly, it would be beneficial to require at
least a periodic re-examination and perhaps in a report to the
Congress. And that's something that we could be helpful in, in
GAO, and we've tried to be in the past. To look at this, are we
actually getting from a particular rule that was promised when
we promulgated it, especially some of these major rules?
Mr. Gaziano. Mr. Chairman, 10 years ago almost, last month,
the House was set to vote on H.R. 994, the Sunset and Review
Act, which, by the way, is maybe something you want to look at
again, which would have sunsetted regulations in the
congressional--in the CFR by part. So that's one option.
As far as the major rule, I think that what Mort has
suggested is one approach. I think that this Subcommittee held
a hearing about 9 years ago where the alternative to require
major rules to receive affirmative authorization was discussed.
I know that the sponsors of the CRA 10 years ago anticipated
that, and that's why they created in the statute that
distinction between major and nonmajor rules.
That did not exist in the statute at the time. It was only
a function of executive order, and they codified that
distinction so that some future Congress could make that. That
would be roughly 61 rules a year divided between all the
relevant authorizing Committees.
And it was understood by those who hoped that that would
some day be considered by Congress that, of course, it
wouldn't--it doesn't take as much legislative record to decide
whether a rule should be enacted into law or not. That's
already received the agency's attention. So it would not--let's
say if a given Committee had five or so a year, it would not
take the same level of attention as passing five other pieces
of legislation.
But the democratic theory was major rules have bigger
impact on the American economy than most laws Congress passes,
at least if it's in a major rule. Maybe you could define it in
some other way. But at least if it's a major rule, Congress
ought to enact it into law.
Mr. Rosenberg. There's a problem here that can be overcome
perhaps. Right now, under the CRA, a major rule is defined as
major by OIRA, the OIRA Administrator. Who is going to do this
differentiating between major and nonmajor rules? Congress
can't do it on a piecemeal basis. That would probably be Chadha
and be a problem.
That's why I struggled with that in writing the article
about how you could do this. I've often thought of a tiered
kind of structure where, but who would designate what it is?
Could you write a definition that would cover all the rules
that you want to come over?
There are some rules that nobody's going to think of as
major until they explode upon you or they're looked at. So
that's a problem that has to be addressed from a constitutional
point of view, as well as a pragmatic point.
Mr. Cannon. Which is why you focus on a joint Committee.
Personally, I'm not sure that works as well as two Committees
that would have responsibility.
Mr. Rosenberg. Well, you don't have a joint Committee if
you have----
Mr. Cannon. But you have a single----
Mr. Rosenberg Joint Resolution of approval, then you don't
need a joint Committee. But you still have----
Mr. Cannon. You have the underlying problem?
Mr. Rosenberg. Yes.
Mr. Cannon. Which means you don't--it doesn't work through
all the--the authorizing Committees because there's no way to
have coherence.
Mr. Rosenberg. But there can be a process whereby there can
be a screening of all rules that come over as proposed rules.
Then there can be a deeming process which gets rid of most of
them and puts them into law after 30 or 60 days.
Mr. Gaziano. I don't know that some people would like the
effect of 42,000 laws, and courts having to interpret them. But
there are--but Mort is right about the problem. There are two
other possible solutions. Right now, there is no--Congress, in
its wisdom for various reasons of expediency, decided not to
make the OIRA determination subject to judicial review.
The two alternatives, if you were going to enact this, I
think, very important reform, would be to make the OIRA
determination subject to judicial review. So there is some
risk, and that does avoid the Chadha problem. And that's why
all regulations still have to come to Congress so that
circumvention can be dealt with.
So that--and then you still need, I think, these other
Committees because major rules are the minimum that Congress
should be enacting into law. But then you make the nonmajor
ones subject to--still subject to disapproval, but more
effectively.
Mr. Cannon. Let me ask, John, suppose you had a single
Committee of jurisdiction without the subject matter expertise.
Is it possible to have a rule that allows or requires the joint
Committee or the single Committee to work with other
Committees? You know, we do that currently with the concurrent
jurisdiction in Committees on some matters.
Is there a way to do that with a Committee that handles all
of them and then somehow coordinates with Committees of
expertise?
Mr. Sullivan. Yes, Mr. Chairman.
For example, you could contemplate that this panel would
report not to the House, but to its sister Committees. It would
make recommendations to the Committees that enacted the
enabling statutes in the first instance.
Mr. Cannon. So serial jurisdiction?
Mr. Sullivan. Yes, sir.
Mr. Cannon. Interesting. All right.
Can I ask one other question? This is sort of technical,
but if we had reports submitted electronically, is it possible
to speed up this process, from your perspective as the
parliamentarian, so that you take and delegate electronically
some of this material? Would that speed up the referral process
out of your office?
Mr. Sullivan. It might speed up the referral process. It
certainly would make more efficient the movement of the paper
and the tracking of submittal dates and so forth, the things
that the clerk's office has to do with the flow.
The parliamentarian would still have to examine the
substance of the rulemakings to discern the Committee
jurisdictions in them, but I think it would materially assist
the Legislative Resource Center and the others who have to move
this paper.
Mr. Cannon. So do we need to do something to establish a
requirement by the Administration to in some consistent manner
submit these things electronically?
Mr. Sullivan. I assume that that might require that you
visit the statutory text. I'm personally leery about going
virtual on anything. Committees frequently want to
teleconference instead of meet together face to face, or poll
their Members instead of having them in the same room and
voting, we constantly try to impress on them notion of
Jeffersonian collegiality and the importance of Members being
together in the flesh. So crossing the threshold of a virtual
submission I would want to be very cautious about that.
But in terms of batch processing, if the comptroller
bundled communications and had a covering electronic submission
that could manage the submittal dates and the tracking and that
sort of thing, I think that would be very helpful.
Mr. Cannon. Great. Thank you.
Obviously, this is a panel of experts who've been here
before, and you all have given very thoughtful, insightful
testimony on this issue. We appreciate your involvement in the
broader APA review.
And with that, we will stand adjourned.
[Whereupon, at 3:43 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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