Why Congress Needs to Improve Its Regulatory Oversight

W ith Republicans set to control the House of Representatives in 2023, President Biden will no longer be able to count on passing large legislative packages to achieve his policy aims. If he continues the practices of his predecessors for decades, that will mean an increased reliance on executive orders, regulations, and guidance from federal agencies.

In other words, expect a redux of President Obama’s “pen and phone” strategy.

The new House majority must conduct oversight and leverage the legislative and appropriations processes to counter the Biden administration’s likely plans for using executive authority. But over the longer term, lawmakers on both sides of the aisle should strengthen the legislative branch’s capacity to oversee regulations and restore the proper balance of governing power under the Constitution.

In a 2016 National Affairs essay, Philip Wallach and Kevin Kosar presented the case for a Congressional Regulation Office to help counter the endless growth of the administrative state. They argued that while Congress has willingly deferred to the executive branch to set policy through regulations, it has simultaneously diminished its own capacity to set policy through legislation. The authors pointed to staffing cuts and reductions in congressional support agencies such as the Government Accountability Office and Congressional Research Service.

To reverse this decline, Wallach and Kosar proposed establishing a Congressional Regulation Office (CRO) modeled on the Congressional Budget Office, which was created in 1974 to counter the executive branch’s increasing power in the federal budgeting process. Wallach and Kosar reasoned that a CRO would serve two primary functions:

1. Provide Congress its own capacity to produce forward-looking analyses of new and pending rules, analogous to how CBO provides forecasts of budget and policy proposals.
2. Provide periodic retrospective reviews of existing significant rules, something even otherwise motivated agencies have little incentive to do.

Once established, the CRO could serve additional functions, such as providing additional expertise to Congress as it considers legislation or supporting Congress in establishing a regulatory budget (should it choose to do so). An effective CRO could “nudge regulatory action onto the congressional agenda, where it presently occupies very little space.” And yet, a useful heuristic commonly used by experts on administrative law would put the share of federal policy done through administrative means at somewhere north of two-thirds. For another perspective, consider that in 2020, for every law Congress passed, federal agencies issued 19 rules and regulations.

In the 118th Congress, there may not yet be a bipartisan consensus to pass authorizing legislation for a Congressional Regulation Office, as Congress did in 1974 to establish the CBO. But a new House Republican majority could take a first step by establishing a House Regulatory Review Office through the rules package for the new Congress. The office could be given responsibilities similar to those that Wallach and Kosar described.

The new office could be established by the majority with an executive director appointed by the speaker. Its mission could be to provide the House of Representatives with analysis of regulatory proposals and implementations, as well as to assess compliance of the executive branch with changes to authorizing law. The Committee on House Administration could oversee the new office. It would not conduct de novo analyses itself, but rather note to Congress where significant rules have not received a retrospective analysis, where the existing cost–benefit analyses are deficient, or where rules are disconnected from their delegated authority.

In addition, Congress should provide additional funding for the nonpartisan GAO to fulfill its statutory responsibilities under the Congressional Review Act to “report on major rules that federal agencies make, including summaries of the procedural steps taken by the agencies.” For example, Congress could direct the comptroller general to establish a new regulatory review team within the GAO to begin rebuilding the legislative branch’s capacity for overseeing regulations.

While the electorate may have “tende[d] toward stalemate” in the midterms, the unintended consequence will likely be an increased flow of policy-making power toward the administrative state. Rebuilding congressional capacity to oversee it should be a priority in the 118th Congress.

Dan Lips is head of policy at Lincoln Network. Satya Thallam is a regulatory expert, former senior official in the White House Office of Information and Regulatory Affairs and the Senate.