House panel reviews Congress' power to overrule rulemakers

More than a decade ago, an assertive new Republican majority in Congress passed legislation that its sponsors, led by former House Speaker Newt Gingrich, R-Ga., hoped would rein in federal rulemakers whom they contended imposed obnoxious restraints on businesses and certain taxpayers.

The law, called the Congressional Review Act, was part of Gingrich's "Contract with America."

Although the legislation was also intended to curb the power of then-President Bill Clinton, a Democrat, he signed it in the belief that some agency rules probably warranted a second look by Congress before taking hold.

Since then, according to testimony Tuesday before the House Judiciary Administrative and Commercial Law Subcommittee, the law appears to have been largely ignored far more than observed.

"Since the CRA was signed into law," said Administrative and Commercial Law Subcommittee chairwoman Linda Sanchez, D-Calif., "43 joint resolutions of disapproval have been introduced relating to 32 rules. None of the House joint resolutions has passed the House and only three of the Senate joint resolutions passed the Senate." Only one passed both chambers.

In the 11 years CRA has been in effect, federal agencies have submitted more than 47,000 rules to Congress for review.

Under CRA's terms, all agencies formulating rules must send a report to each house of Congress incorporating the text and purpose of the proposals, though not analyzing the impact on those subject to the rules.

Copies also go to the GAO in case Congress' various committees need analytical vetting of the rules.

The problem, apparently, is that the same Congress that enacted CRA later stripped committees of their oversight staffs, so they were widely incapable of parsing the rules and thus raising objections to the ones they felt were distorting the intention of the laws that required rule-making.

GAO, House and Senate parliamentarians, the clerks' offices and the committees of jurisdiction "have experienced a deluge of paperwork," Sanchez said, with little to show for the effectiveness of the law.

Mort Rosenberg, a 35-year veteran of the Congressional Research Service who specializes in administrative law, said of the thousands of rules issued since CRA went into effect, only about 700 were major and only one has been nullified by Congress.

"The federal appellate courts have negated all or part of about 60 federal rules [from 1995 to 2006], so the possibility of congressional nullification is remote," he said. Ironically, he added, about half of all the rules tested in court were found legally wanting.

When asked by Sanchez what could be done to put some teeth into the law, Rosenberg and Sally Katzen, a University of Michigan law professor on loan to George Mason University, disagreed on how to do it.

Rosenberg called for creation of a Joint House-Senate Committee to sift through the agency rules and funnel the significant ones to committees of jurisdiction for possible action.

Katzen opposed the idea of adding another level of congressional bureaucracy to an already overburdened legislative branch, while noting that the Senate is a major obstacle in moving any kind of tendentious legislation.

But they both seemed warm to the idea that Congress should set clear priorities on which rules should be vetted and which largely discounted, based on their impact and cost to the affected parties. At the end, Sanchez and Administrative and Commercial Law Subcommittee ranking member Chris Cannon, R-Utah, called for more study of the matter.