To:             The Select Committee on the Modernization of Congress

From:       Philip Wallach, R Street Institute

Reform:   Options for Increasing Congressional Capacity on Complex Regulatory Matters

The federal government’s regulatory presence is nearly as imposing as its fiscal presence in the American economy. Especially since the proliferation of federal regulatory bodies in the 1970s, few sectors of the country’s economy are untouched by federal regulation. By Congress’s own design, most of the regulations directly affecting businesses are written by agencies, rather than by the legislature itself. But the underlying statutes nevertheless provide for the basic architecture of the regulatory state, thereby significantly shaping the tools and choices available to regulators. If regulators are to be able to cope with fast-changing technology, globalized supply chains, and shifting public demands over time, Congress must periodically provide sensible course corrections for the nation’s regulatory programs.

In theory, the reauthorization process ought to enable Congress to make such course corrections on a regular basis. In practice, that process is in disrepair. Reauthorization is often an empty ritual and in many other instances is simply observed in the breach, such that Congress waives its own rules preventing money from being appropriated to programs whose authorization has lapsed. Contemporary congressional dysfunction is certainly responsible for some large part of this problem. But there is also a case to be made that, even when a bipartisan desire to constructively contribute to policymaking does exist (as it does on many low-salience issues), Congress finds itself effectively hamstrung by its own capacity shortcomings.

One area of focus in strengthening congressional capacity, then, is to build up Congress’s ability to grapple with the technically complex subject matter of regulatory policy. Although the distinction is not always made cleanly, this is quite different from asking how members of Congress and their staffs employ information technology to do their own jobs effectively—a subject which is also very much under discussion. Several major reforms (each of which comes with minor variations) are receiving significant attention:

Revive the Office of Technology Assessment

The Office of Technology Assessment (OTA) was created in 1972 and served Congress until it was defunded by the new Republican majority in 1995. One advantage some reformers see in reviving it is that its statutory authority has remained on the books, so that all that would be needed to get it up and running again would be funding. On the other hand, OTA was killed off because the GOP felt it suffered from a thoroughgoing liberal bias. Given that its model involved heavy reliance on networking with academics, and given that conservatives are probably even more skeptical of academia today than they were a quarter century ago, the OTA’s brand (not to mention uninspiring name) may be seen as unwelcome baggage as much as an asset.

Build up existing congressional support agencies

Congress could instead simply attempt to get its existing legislative support agencies, especially the Government Accountability Office and Congressional Research Service, to build up their own bases of expertise. The GAO is pushing in that direction on its own initiative, recently announcing that it would be establishing a dedicated Science Technology Assessment and Analytics team. Skeptics wonder whether GAO’s core auditing competence makes it a good fit for dealing with complex and sometimes open-ended questions surrounding technology, as well as questioning the adequacy of GAO’s existing staff to fulfill the ambitious new mandate it has announced for itself.

Create a Congressional Regulation Office

One area in which Congress is conspicuously lacking is in cost-benefit analysis, which is the coin of the realm in modern regulatory affairs. Currently Congress ends up relying heavily on the Office of Information and Regulatory Affairs (OIRA), which reviews agency assessments. While OIRA has a good reputation, as part of the Office of Management and Budget it is encompassed in the Executive Office of the President, meaning that it ought not be thought of as politically neutral. Relying heavily on the example of the Congressional Budget Office, Congress in the 1990s considered creating a Congressional Office of Regulatory Analysis. Kevin Kosar and I have made the case for a Congressional Regulation Office today.

Enhance committee staff’s in-house expertise

Perhaps most straightforward would be to increase Congress’s in-house expertise by increasing the resources available for committee staff. These investments could be especially geared toward understanding difficult issues, rather than seeking political advantage, in several ways. One would be to give committees permanent staff positionsnot associated with the chair or ranking member, such that some limited number of staffers would be able to build careers not subject to political winds. Another would be to raise salary caps for some positions, so that Congress could better compete with private sector firms when trying to hire top talent.

Congress will never match executive branch’s expertise—that is simply a function of numbers. But there is room to hope that it can improve its ability to ask the right questions and thereby allow its members to function as effective generalists in steering the development of regulatory policy. This is an issue with real bipartisan appeal that the Select Committee can fruitfully push higher on Congress’s agenda.

Thank you for your consideration. If the committee has further questions, please contact me at [email protected].

Featured Publications