Enhancing oversight: GAO’s blueprint for congressional control over agency rulemaking

Photo Credit: Getty

On July 5, the White House released its biannual regulatory agenda for the executive branch, which highlights agency priorities for the next six months. With a record number of new major directives that will affect every corner of Americans' lives, addressing ambitions of the unofficial "fourth branch" of government is an important issue for policymakers this election year.

As it happens, an overlooked Government Accountability Office (GAO) report from December 2023, titled Options for Enhancing Congressional Oversight of Rulemaking and Establishing an Office of Legal Counsel, identifies three potential areas for improvement that ought to have bipartisan appeal.

1. Establish a new regulatory oversight office. Currently, the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget oversees the rulemaking process. However, the president appoints both OIRA directors and agency heads, creating an overlapping agenda for bureaucratic expansion rather than a watchdog ethos. With an additional push from Biden's new Circular A-4 guidance, the OIRA has lost its independent viewpoint, becoming more of an enabler for new government programs than a watchdog.

A new office with congressionally appointed directors is one option GAO describes. Proposals have circulated at least since 1999, when Sen. Richard Shelby (R-AL) pitched the Congressional Office of Regulatory Analysis to analyze and report on significant rules. Whatever its title, the new office would require an enshrined antiregulation ethos to ensure it doesn't follow OIRA's advocacy path.

2. Reform the regulatory review process. Congress could also modify how agencies craft rules by establishing a regulatory budget, commissioning periodic review of past regulations, and implementing sunsetting requirements.

Additionally, authorizing partial congressional disapproval of rules could be beneficial. Under the current setup of the Congressional Review Act, Congress can only overturn entire rules, which they rarely do. If Congress could strike down specific clauses, elected officials would have greater control over the rulemaking process.

3. Change the functions of bodies involved in the oversight process. Another alternative for modifying the rulemaking process is for congressional committees to better anticipate future rulemaking and estimate costs and benefits before delegating legislation to agencies. GAO could also report on the total number of rules in existence and their cumulative costs, a figure they currently do not provide.

Worth noting is that the GAO report omits suggestions for improving oversight of regulatory dark matter, or the sub-regulatory guidance documents, memoranda, and notices that agencies publish that influence regulatory compliance.

These reforms could enhance checks and balances on Capitol Hill, but GAO overlooks the root of the oversight issue: congressional delegation of authority. The report's authors confidently assert that "Congress has broad oversight and investigative authorities," but never mention the Constitution's mandate that "All legislative Powers herein granted shall be vested in a Congress."

So, while implementation of regulatory oversight reforms is worthwhile and even necessary, the problem of regulatory overreach cannot be fully solved until Congress reclaims its legislative duties. Most downstream oversight issues wouldn't exist if Congress legislated as the Constitution directs it to. Rules passed would then be the result of deliberation and compromise by elected officials - which is how government is supposed to work - and not unelected career bureaucrats.

Curbing the increasing power regulations have over Americans' lives will remain on the agenda until congress either implements reforms like those offered by GAO or takes more drastic action to return legislative duties to Capitol Hill.