The Federal Government on Autopilot: Delegation of Regulatory Authority to an Unaccountable Bureaucracy

Capitol
Testimony of Sofie E. Miller, Senior Policy Analyst
May 24, 2016

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Introduction

Thank you Chairman King, Ranking Member Cohen, and Members of the Task Force for inviting me to share my research on the retrospective review of regulations, and how the review process can be improved. I am Senior Policy Analyst at the George Washington University Regulatory Studies Center, where I analyze the effects of regulation on public welfare and evaluate regulatory reforms. Recently, I researched the success of current and past retrospective review efforts and identified ways to improve these initiatives.

I appreciate the Task Force’s interest in the rulemaking process, including retrospective review, and determining whether there are opportunities for Congress to improve it. My prepared statement includes the following points:

  • A key component of an effective regulatory process is reviewing the effects of existing rules to evaluate whether they are accomplishing their intended goals, and to determine what effect they have on the regulated public. Retrospective review is a bipartisan reform effort that can improve both the quality of existing rules and of future rules by learning what works well in a regulatory context and what doesn’t.
  • Despite 40 years of bipartisan reform efforts, agencies still do not conduct effective retrospective review of their rules. More recent efforts to encourage ex post review have not resulted in a systematic culture of evaluation or large burden reductions for the regulated public.
  • It is important to plan how to evaluate a rule at the outset of rulemaking: writing rules to facilitate later retrospective review can ensure effective data collection and encourage regulators to clearly identify (and think through) how the proposed rule will address the policy problem at hand. Agencies are not currently designing their rules at the outset to be measured, which compounds the difficulty of conducing effective retrospective review.

My recent working paper evaluating how well agencies design their rules for future review is attached as an addendum to this statement, as is my article with Susan Dudley in the Administrative Law Review Accord on retrospective review as a remedy for regulatory accretion.[1]

An Introduction to Retrospective Review

Retrospective review is a form of program evaluation that reviews the efficacy of a program or policy after implementation. The purpose of retrospective review is to evaluate whether a policy—in this case, a regulation—has had its intended effect, and whether it should be continued or revised. By examining the effects of existing rules, these reviews can inform policymakers on how best to allocate limited resources to accomplish broad social goals, like improved environmental quality or better human health, through regulation. Retrospective review can provide valuable feedback and learning that improves the design of future regulations.

While policymakers have the opportunity to revisit many federal programs each time federal funds are being appropriated, regulatory programs often exist in perpetuity without a statutory requirement to revisit implementation. Every year, federal agencies issue thousands of new regulations that both benefit and harm Americans. Despite the pace of regulatory activity, regulators seldom look back at existing rules to consider whether they are accomplishing their goals and resulting in the estimated public benefits and costs. That’s why President Obama, like presidents before him, encouraged federal regulatory agencies to review existing regulations and to “modify, streamline, expand, or repeal them in accordance with what has been learned.”[2]

Regulations often receive critical analysis before promulgation, usually in the form of benefit-cost analysis. This prospective analysis describes the anticipated results of a proposed rule, including unquantifiable effects. However, regulatory agencies have a mixed record on ex post review despite their “long track record of prospective analysis of proposed regulations that can address these questions.”[3]

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[1]  For additional perspectives on how retrospective review can address regulatory accretion, see Mandel & Carew, “Regulatory Improvement Commission: A Politically-Viable Approach to U.S. Regulatory Reform,” Progressive Policy Institute, May 2013. http://www.progressivepolicy.org/wp-content/uploads/2013/05/05.2013-Mandel-Carew_Regulatory-Improvement-Commission_A-Politically-Viable-Approach-to-US-Regulatory-Reform.pdf

[2]  Executive Order 13563. “Improving Regulation and Regulatory Review.” January 18, 2011. https://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf

[3]  Joseph Aldy. “Learning from Experience: An Assessment of the Retrospective Reviews of Agency Rules and the Evidence for Improving the Design and Implementation of Regulatory Policy.” A report for the Administrative Conference of the United States. 2014. https://www.acus.gov/report/retrospective-review-report


See also:

Watch the hearing: House Judiciary Committee Executive Overreach Task Force Hearing website

Pitching Retrospective Review as a Cure for Regulatory Accumulation, by Sofie E. Miller

Regulatory Accretion: Causes and Possible Remedies, by Sofie E. Miller & Susan E. Dudley in the Administrative Law Review Accord

Evaluating Retrospective Review of Regulations in 2014, Sofie E. Miller

The Hill Opinion, Regulations need retrospective review, by Sofie E. Miller

Working Paper: Learning from Experience: Retrospective Review of Regulations in 2014, by Sofie E. Miller

How to Improve Retrospective Review and Reduce Regulatory Burdens, by Sofie E. Miller