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Did they realy mean to use it or was it just for
show? jr
By Cindy Skrzycki
In the regulatory "reform" fervor that accompanied Republicans taking over Congress, the Congressional Review Act was supposed to be the ultimate weapon for curbing big government, the knockout punch for eliminating bad rules. But a recent review of the first 10 years of the law shows it often sits in a corner unused -- and even when unleashed, it misses more regulations than it hits. The worry was that Congress delegated too much power to federal agencies to write rules to go along with the laws it passed. The CRA was designed to be a powerful oversight tool to get rid of rules that turned out substantially different than lawmakers anticipated. The procedure allows nullification of a rule if both houses of Congress and the president disapprove of an agency action. A final rule's effective date is delayed for 60 days while Congress makes up its mind. But it has been used successfully only once, to kill a controversial ergonomics rule issued by the Clinton administration Labor Department to deal with repetitive-motion injuries. Since the law passed in 1996, 37 joint resolutions of disapproval relating to 28 rules have been introduced, according to the Government Accountability Office . Only the ergonomic rule was voted on by both houses. For example, the Senate disapproved a Federal Communications Commission rule concerning broadcast media ownership, but the House did not act on it. The Senate also went after a 2005 mad cow disease rule, but the House did not follow suit. "The expectation was that Congress, through the CRA, would again become a major player influencing agency decision-making," said Morton Rosenberg , a specialist in American public law at the Congressional Research Service . The main sponsor, former representative David M. McIntosh (R-Ind.), a champion of deregulation, envisioned the law as wresting back power from the agencies and the executive branch, which had become increasingly involved in regulatory policy and review. Former senator Don Nickles (R-Okla.) took charge of the legislation in the Senate. The CRA has likely been kept out of the ring because the GOP gained control of the executive branch as well, starting in 2001, and because of the increased role the Office of Management and Budget has taken in reviewing rules under regulations czar John Graham . The House Judiciary subcommittee on commercial and administrative law recently took a look at the history of the law, examining its usefulness -- or lack thereof -- and whether it needs to be changed to be more effective. Rep. Chris Cannon (R-Utah), chairman of the subcommittee, said he saw the advantages and limitation of the law. "It was a good idea but very hard to execute. We haven't set up the proper procedures to make it work," he said in an interview. Instead of eliminating rules, the law has generated a mountain of paperwork. Some 41,218 non-major rules and 610 major rules have been reported to Congress in the past decade. This means that copies of those rules had to be submitted to both houses of Congress and the GAO. John V. Sullivan , the House parliamentarian, told the subcommittee that the flow of paper has tripled the "executive communications" with Congress. There are other ways to deal with unpopular rules. Members of Congress opposed to a regulatory initiative can seek to get its funding cut. Because there is no mechanism screening which rules go to Congress for review, the result is a deluge of rules tough for congressional staffers to digest and review. There is talk of creating a joint committee to recommend rules for disapproval or an office of independent regulatory analysis. Peter Strauss , a law professor at Columbia University Law School , said he is not convinced the benefits outweigh the paper-pushing costs. He particularly dislikes the aspect of the law that prevents an agency from adopting a similar rule after Congress disapproves the original rule. "What if a Labor secretary wants a rule now? What kind of risks will you run in doing that, and how will a court interpret that?" asked Strauss, referring to the ergonomic issue. Gary Bass , executive director of OMB Watch , a public-interest group that monitors federal regulation, says there is simply no need for the review law. "If Congress was doing oversight effectively, you wouldn't need a CRA," Bass said. The congressional staffers who worked on the legislation got together recently for a CRA lunch and reunion. Some of them conceded that Congress has lacked the will to use the mechanism. "I expected it to be used more forcefully, and so did the sponsors," said Todd F. Gaziano , one of the principal drafters of the legislation and now a senior fellow at the Heritage Foundation . "Some of the new members of Congress don't even know it exists." Gaziano, however, is convinced the law has served valuable purposes. He said there now is an official database of agencies' final rules, a resource for Congress and scholars. He thinks the existence, if not the use, of the act has deterred agencies from writing rules that stray too far from congressional intent. As for complaints that it's too much work for Congress to review all these rules, Gaziano suggests it hire more staffers. "Why should we expect the American people to be bound by these rules if the staffs of Congress won't even pass their eyes over them?" he asked. © 2006 The
Washington Post Company
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