Into the Void

GAO's Role in the Regulatory State

August 25, 2020

Forthcoming in the American University Law Review

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Abstract

The study of Congress has largely focused on the legislative and oversight mechanisms of its members, committees, and leaders. And the study of federal agencies tends to focus on the executive branch. But there are agencies and institutions that exist to support Congress, the internal operations of which have mostly been overlooked in administrative law and political science. Far more than ministerial, some of these agencies have the ability to shape policy in very meaningful ways. They also have their own institutional interests distinct from the legislators that they serve. As instruments of Congress, though, they are generally exempt from the Administrative Procedure Act and a host of other “good government” statutes that govern agency conduct. This does not mean that they operate in a lawless fashion, quite the contrary. They are bounded by statutes and have internal norms that guide their conduct. This article suggests what we might learn from closer study of these unusual agencies.

One example of such an agency is the U.S. Government Accountability Office (GAO). Known mostly for its role as an auditor, the GAO’s activities have expanded over time. As part of this expansion, the GAO became a referee in an increasingly important part of the administrative state: determining which actions are “rules” under the Congressional Review Act. The significance of these opinions, which are not binding as a matter of law, has grown as legislators use them strategically in regulatory politics.

Part I places the GAO into context along with other Congressional agencies, to shed light on the wide array of functions that they exist to serve. Part II explains the Congressional Review Act, the statute that allows Congress to disapprove rules using fast-track procedures. Part III describes the CRA legal opinions that the GAO issues and why they matter. Part IV sketches a surprisingly wide variety of policy implications of this phenomenon and suggests areas for future study.