[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                        10TH ANNIVERSARY OF THE 
                        CONGRESSIONAL REVIEW ACT

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 30, 2006

                               __________

                           Serial No. 109-97

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

           Subcommittee on Commercial and Administrative Law

                      CHRIS CANNON, Utah Chairman

HOWARD COBLE, North Carolina         MELVIN L. WATT, North Carolina
TRENT FRANKS, Arizona                WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio                   CHRIS VAN HOLLEN, Maryland
MARK GREEN, Wisconsin                JERROLD NADLER, New York
RANDY J. FORBES, Virginia            DEBBIE WASSERMAN SCHULTZ, Florida
LOUIE GOHMERT, Texas

                  Raymond V. Smietanka, Chief Counsel

                        Susan A. Jensen, Counsel

                        Brenda Hankins, Counsel

                   Mike Lenn, Full Committee Counsel

                   Stephanie Moore, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 30, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Chris Cannon, a Representative in Congress from the 
  State of Utah, and Chairman, Subcommittee on Commercial and 
  Administrative Law.............................................     1

                               WITNESSES

Mr. J. Christopher Mihm, Managing Director for Strategic Issues, 
  U.S. Government Accountability Office, Washington, D.C.
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Mr. Morton Rosenberg, Esq., Specialist in American Public Law, 
  American Law Division of the Congressional Research Service, 
  Library of Congress, Washington, D.C.
  Oral Testimony.................................................    19
  Prepared Statement.............................................    21
Mr. Todd F. Gaziano, Esq., Senior Fellow in Legal Studies, and 
  Director, Center for Legal and Judicial Studies, The Heritage 
  Foundation, Washington, D.C.
  Oral Testimony.................................................    23
  Prepared Statement.............................................    26
Mr. John V. Sullivan, Esq., Parliamentarian, Office of the 
  Parliamentarian, U.S. House of Representatives, Washington, 
  D.C.
  Oral Testimony.................................................    38
  Prepared Statement.............................................    39

                                APPENDIX
               Material Submitted for the Hearing Record

Mr. J. Christopher Mihm, Managing Director for Strategic Issues, 
  U.S. Government Accountability Office, Washington, D.C.: Letter 
  dated May 12, 2006, response to question from the Subcommittee.    52
CRS Report for Congress by Mr. Morton Rosenberg ``Congressional 
  Review of Agency Rulemaking: An Update and Assessment of the 
  Congressional Review Act After Ten Years''.....................    55


                        10TH ANNIVERSARY OF THE 
                        CONGRESSIONAL REVIEW ACT

                              ----------                              


                        THURSDAY, MARCH 30, 2006

                  House of Representatives,
                         Subcommittee on Commercial
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:43 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Chris 
Cannon (Chairman of the Subcommittee) presiding.
    Mr. Cannon. I'd like to call the Subcommittee to order.
    We're here to--by the way, thank you, Howard. Thank you for 
being here. I want to thank Mr. Coble for being with us to 
start the hearing.
    We're here today to look at the Congressional Review Act, a 
law passed to provide Congress with a tool in the oversight of 
administrative rulemaking. In the last 10 years, more than 
41,828 rules have been reported to Congress under the 
Congressional Review Act.
    When Congress passes complex legislation, it often leaves 
many details to the agencies authorized to enforce the laws, 
and this body must remain vigilant over those details and how 
they are filled in by the agencies through congressional 
oversight.
    The Congressional Review Act established a mechanism for 
Congress to review and disapprove Federal agency rules through 
an expedited legislative process. It requires agencies to 
report to Congress and to the Comptroller General with 
information to help us assess the merits of the rules.
    Now, today, we have a panel of experts who are here, who 
are going to be discussing this process in greater detail. As 
our panel of expert witnesses will attest, there are some areas 
of the CRA that could be changed to make it a more effective 
tool for Congress.
    Today's hearing is part of the Administrative Law Process 
and Procedure Project that our Subcommittee is spearheading. 
The objective of the project is to conduct a nonpartisan, 
academic analysis of the Federal rulemaking process.
    Scholars and experts from academic and legal institutions 
and organizations across the Nation are involved in this 
project. The project will conclude with a detailed report, 
including recommendations for legislative proposals and 
suggested areas for further research and analysis to be 
considered by the Administrative Conference of the United 
States.
    As you may recall, my legislation reauthorizing ACUS was 
signed into law in the fall of 2004. The Administrative 
Conference is a nonpartisan public think tank--public-private 
think tank that proposes recommendations, which, historically, 
have improved administrative aspects of regulatory law and 
practice.
    ACUS served as an independent agency charged with studying 
the efficiency, adequacy, and the fairness of the 
administrative procedure used by Federal agencies. Most of the 
recommendations made by ACUS were implemented and, in turn, 
helped save taxpayers millions of dollars.
    Unfortunately, ACUS has yet to receive appropriated funds. 
The Congress must fund ACUS so that it can continue to provide 
valuable recommendations for improving the administrative law 
process.
    Justice Breyer, in his testimony to the Subcommittee, noted 
that the conference's recommendations resulted in huge savings 
to the public. Let's work to bring that savings back into 
reality.
    I look forward to testimony from our witnesses.
    [The statement of Mr. Cannon follows:]

Prepared Statement of Opening Statement of the Honorable Chris Cannon, 
   Chair, Subcommittee on Commercial and Administrative Law, for the 
 Oversight Hearing on the 10th Anniversary of the Congressional Review 
                                  Act

    We are here today to look at the Congressional Review Act, a law 
passed to provide Congress with a tool in the oversight of 
administrative rulemaking. In the last ten years, more than 41,828 
rules have been reported to Congress under the Congressional Review 
Act.
    When Congress passes complex legislation, it often leaves many of 
the details to the agencies authorized to enforce the laws. This body 
must remain vigilant over those details and how they are filled in by 
the agencies through congressional oversight.
    The Congressional Review Act established a mechanism for Congress 
to review and disapprove federal agency rules through an expedited 
legislative process. It requires agencies to report to Congress and the 
Comptroller General with information to help us assess the merits of 
the rules.
    Today we have a panel of experts here who are going to be 
discussing this process in greater detail. As our panel of expert 
witnesses will attest, there are some areas of the CRA that could be 
changed to make it a more effective tool for Congress.
    Today's hearing is part of the Administrative Law, Process and 
Procedure Project that our Subcommittee is spearheading. The objective 
of the Project is to conduct a nonpartisan, academic analysis of the 
federal rulemaking process.
    Scholars and experts from academic and legal institutions and 
organizations across the nation are involved in this Project.
    The Project will conclude with a detailed report, including 
recommendations for legislative proposals and suggested areas for 
further research and analysis to be considered by the Administrative 
Conference of the United States.
    As you may recall, my legislation reauthorizing ACUS was signed 
into law in the fall of 2004. ACUS is a nonpartisan ``public-private 
think tank'' that proposes recommendations which, historically, 
improved administrative aspects of regulatory law and practice. ACUS 
served as an independent agency charged with studying the efficiency, 
adequacy, and fairness of the administrative procedure used by federal 
agencies.
    Most of the recommendations made by ACUS were implemented, and, in 
turn, helped save taxpayers millions of dollars. Unfortunately, ACUS 
has yet to receive appropriated funds. The Congress must fund ACUS so 
that it can continue to provide valuable recommendations for improving 
the administrative law process. Justice Breyer, in his testimony to the 
Subcommittee, noted that the Conference's recommendations resulted in a 
``huge'' savings to the public. Let's work to bring that savings back 
into reality.
    I look forward to the testimony from our witnesses.

    Mr. Cannon. When Mr. Watt arrives, we'll recognize him for 
an opening statement, if he would like to do that.
    And at this point, without objection, all Members may place 
their statements in the record. Hearing no objection, so 
ordered.
    Mr. Cannon. Without objection, the Chair will be authorized 
to declare recesses of the hearing at any point. Hearing none, 
so ordered.
    Oh, and at this point, we'd like to recognize Mr. Coble for 
an opening statement.
    Mr. Coble. Mr. Chairman, I will not give an opening 
statement. I will commend you for having assembled a very 
distinguished panel, and I look forward to hearing from them.
    I have another meeting, however, simultaneously scheduled. 
So I will probably be in and out.
    But I thank you, Mr. Chairman.
    Mr. Cannon. I thank the gentleman.
    I ask unanimous consent that Members have 5 legislative 
days to submit written statements for inclusion in today's 
hearing record. Without objection, so ordered.
    I am now pleased and honored to introduce the witnesses for 
today's hearing.
    Our first witness is Chris Mihm, who is the managing 
director of GAO's Strategic Issues Team, which focuses on 
government-wide issues with the goal of promoting a more 
results-oriented and accountable----
    [Pause.]
    Mr. Cannon. We would certainly not like this Committee to 
be interrupted by what happens on the floor of the House.
    We were talking about the Strategic Issues Team, which 
focuses on government-wide issues with the goal of promoting a 
more results-oriented and accountable Federal Government. The 
Strategic Issues Team has examined such matters as Federal 
agency transformations, budgetary aspects of the Nation's long-
term fiscal outlook, and civil service reform.
    Mr. Mihm is a fellow of the National Academy of Public 
Administration, and he received his undergraduate degree from 
Georgetown University.
    Our second witness is Mort Rosenberg, a specialist in 
American public law in the American Law Division of the 
Congressional Research Service. In all matters dealing with 
administrative law, Mort has been the Judiciary Committee's 
right hand. For more than 25 years, he has been associated with 
CRS and has appeared before this Committee a number of times.
    In addition to these endeavors, Mort has written 
extensively on the subject of administrative law. He obtained 
his undergraduate degree from New York University and his law 
degree from Harvard Law School. And we welcome you back Mr. 
Rosenberg.
    Todd Gaziano is our third witness. He is a senior fellow in 
legal studies and the director of the Center for Legal and 
Judicial Studies at The Heritage Foundation. Mr. Gaziano has 
served in all three branches of government.
    In the executive branch, he worked at the U.S. Department 
of Justice in the Office of Legal Counsel during the Reagan, 
Bush, and Clinton administrations. In the judicial branch, he 
was a law clerk in the 5th Circuit Court of Appeals for the 
Honorable Edith Jones.
    And between 1995 and 1997, he was the chief counsel to the 
House Subcommittee on National Economic Growth, Natural 
Resources, and Regulatory Affairs. During that time, he was 
involved in regulatory reform legislation, including the 
Congressional Review Act of 1996. Mr. Gaziano graduated from 
the University of Chicago Law School.
    Our fourth witness is Mr. John Sullivan, the 
Parliamentarian for the U.S. House of Representatives. This is 
an interesting experience to actually testify, isn't it?
    Mr. Sullivan has served in the House of Representatives 
since 1984 as a counsel for the House Armed Services Committee, 
then as Assistant Parliamentarian and Deputy Parliamentarian 
before he was appointed as the Parliamentarian by the Speaker 
during the 108th Congress.
    Prior to coming to the Hill, Mr. Sullivan served 10 years 
in the Air Force. He's a graduate of the U.S. Air Force Academy 
and earned his law degree from the Indiana University School of 
Law.
    This is only the second time that a sitting Parliamentarian 
has testified in front of a House Committee. The first was on 
the same subject a year after the Congressional Review Act was 
passed. We truly appreciate your testimony today and your 
taking time out to do this.
    Just as a side note, I understand, Mr. Sullivan, that your 
grandfather was Lefty Sullivan, one of the pitchers for the 
1919 White Sox's. I had no idea, thank you. I am guessing that 
he would have been very happy with the White Sox season last 
year? That's great.
    I extend to each of you my appreciation for your 
willingness to participate in today's hearing. Because your 
written statements will be included in the record, I request 
that you limit your oral remarks to 5 minutes. Accordingly, 
please feel free to summarize or highlight the salient points 
of your testimony.
    You will note that we have a lighting system. Green means 4 
minutes, yellow means 1 minute, and red means you're out of 
time. Generally, we're pretty loose with that, and depending on 
whether we have people here to ask questions, we may be more or 
less loose. But, I want to let you know that it's a travel day 
for some folks, and so we'd like to pay some attention to that.
    After you've presented your remarks, the Subcommittee 
Members, in the order they arrive, will ask questions of the 
witnesses, and they'll be subject to the 5-minute limit. And, 
we're going to be quite strict with that one.
    I ask unanimous consent that Members have 5 legislative 
days to submit additional questions for the witnesses. Hearing 
no objection, so ordered.
    Pursuant to the directive of the Chairman of the Judiciary 
Committee, I ask the witnesses to please stand and raise your 
right hand to take the oath.
    [Witnesses sworn.]
    Mr. Cannon. The record should reflect that all of the 
witnesses answered in the affirmative. You may be seated.
    Mr. Mihm, would you please go ahead with your testimony?

    TESTIMONY OF J. CHRISTOPHER MIHM, MANAGING DIRECTOR FOR 
   STRATEGIC ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE, 
                        WASHINGTON, D.C.

    Mr. Mihm. Thank you, Mr. Chairman. Mr. Chairman, Mr. Coble, 
it's indeed, a great honor to appear before you today to 
discuss the Congressional Review Act.
    As you mentioned in your opening statement, Mr. Chairman, 
the CRA was enacted to ensure that Congress has an opportunity 
to review and possibly reject rules issued by executive 
agencies before they become effective. Under the CRA, two types 
of rules, major and nonmajor, must be submitted to both houses 
of Congress and GAO before they can be implemented.
    Taking your guidance, Mr. Chairman, I'll limit my comments 
to discussing GAO's role under CRA and the role that the CRA 
plays in the broader regulatory context. First, on the first 
point--GAO's primary role under the CRA is to assess and to 
report to Congress, on each major rule, the relevant agency's 
compliance with certain prescribed procedural steps.
    These requirements include preparation of a cost-benefit 
analysis when that is required, compliance with the Regulatory 
Flexibility Act, the Unfunded Mandates Reform Act--commonly 
known as UMRA, the Administrative Procedures Act, Paperwork 
Reduction Act, and relevant executive orders, including 12866.
    GAO's report must be sent to the congressional committees 
of jurisdiction within 15 calendar days of the publication of 
the rule or submission of the rule by the agency, whichever is 
later.
    While the CRA is silent in regard to GAO's role concerning 
nonmajor rules, we found that the basic information about those 
rules should also be collected in a manner that can be useful 
to Congress and the public. Specifically, since the CRA was 
enacted in 1996, we have received and submitted reports on 610 
major rules and entered over 41,000 nonmajor rules into a 
database that we created and maintain.
    To compile information on all of the rules--that is, major 
and nonmajor--submitted to us under the CRA, we established 
this database, available to the public through the Internet. 
Our database gathers basic information about the 15 to 20 major 
and nonmajor rules that we typically receive each day, 
including the title, the agency, the type of rule, proposed 
effective date, date published in the Federal Register, other 
pertinent information, and any joint resolutions of disapproval 
that may have been introduced.
    Each year, we also seek to determine whether all final 
rules covered by the CRA and published in the Federal Register 
have been filed with both Congress and us. We do this review to 
both verify the accuracy of our database and to determine if 
agencies are complying with the CRA.
    We forward a list of unfulfilled rules to OMB for their 
handling, and in the past, they have disseminated the list to 
the agencies, most of which file the rules or offer an 
explanation of why they do not believe the rule is covered by 
the CRA.
    In the 10 years since the CRA was enacted, all major rules 
have been filed with us in a timely fashion. For nonmajor 
rules, the degree of compliance has remained fairly constant, 
but not as high, with roughly 200 nonmajor rules per year not 
filed with our office. And, they're the ones that we have to go 
after and go back to OIRA on.
    One major area of noncompliance with the CRA's requirements 
has been that agencies have not always delayed the effective 
date of the major rules for the required 60 days. More 
specifically, agencies did not delay the effective date for 71 
of the 610 major rules filed with our office.
    My written statement contains the agencies' explanation for 
that, and as I note in the statement, we don't view those as 
valid explanations.
    My second broad point this afternoon is that agencies and 
GAO have provided Congress a considerable amount of information 
about the forthcoming rules in response to the CRA. The limited 
number of joint Congressional resolutions might suggest that 
this information generates little additional oversight of 
rulemaking.
    However, as we have found in our review of the information 
generated on Federal mandates under UMRA, the benefits of 
compiling and making information available on potential Federal 
actions should not be underestimated. Further, as we've also 
found regarding UMRA, the availability of procedures for 
congressional disapproval may have some deterrent effect.
    My good CRS colleague Mort Rosenberg has reported that 
several rules have been affected by the presence of the review 
mechanism, suggesting that the CRA review scheme does have some 
influence in helping Congress maintain some transparency and 
oversight of the regulatory process.
    Let me add my statement at that point, Mr. Chairman, and I 
am happy to take any questions that you or any other Members of 
the Subcommittee may have.
    [The prepared statement of Mr. Mihm follows:]

               Prepared Statement of J. Christopher Mihm




    Mr. Cannon. Thank you.
    Mr. Rosenberg.

  TESTIMONY OF MORTON ROSENBERG, ESQ., SPECIALIST IN AMERICAN 
PUBLIC LAW, AMERICAN LAW DIVISION OF THE CONGRESSIONAL RESEARCH 
         SERVICE, LIBRARY OF CONGRESS, WASHINGTON, D.C.

    Mr. Rosenberg. Thank you very much, Mr. Chairman and Mr. 
Coble.
    I'm pleased to be here again, dealing with an important 
issue involved in our administrative law project. I have 
submitted a report of the 10 years of action under the CRA and 
also my statement for the record. Let me just make certain 
points, as quickly as I'm able to. As you know, I'm verbose.
    Point one is that when the House and Senate passed this 
legislation, they understood that they were addressing a 
fundamental institutional concern. That institutional concern 
involved the development of the administrative state, the fact 
that there is tremendous amount of delegation of rulemaking and 
law-making authority to the agencies, that those delegations 
are broad and vague, and that they're absolutely necessary.
    Point two is that Congress, over the years, has been 
criticized as abdicating its responsibility with respect to 
oversight of those delegated authorities. The sponsors of the 
legislation said, and I quote, ``In many cases, this criticism 
is well founded. Our constitutional scheme creates a delicate 
balance between the appropriate roles of Congress in enacting 
laws and the executive branch in implementing those laws. This 
legislation will help address the balance, reclaiming for 
Congress some of its policymaking authority without at the same 
time requiring Congress to become a super regulatory agency.''
    Well, the statistics that have been compiled by GAO and 
reflected in their testimony and in my report indicate that 
those hopes seem to have been dashed. That, indeed, the 
anticipation that the agencies, because of the existence of the 
CRA, become a factor in the rule development process--a key 
factor--and level the playing field and provide the kind of 
regulatory accountability to Congress and the responsibility of 
Congress for overseeing it, appear to have been dashed.
    And indeed, events over the last decade have exacerbated 
very much the CRA, in addition to the flaws of the CRA. Some of 
the flaws--and the major ones, that I would pick out, the two 
major ones are the lack of a screening device for Congress to 
be able to identify particularly the rules that need to be 
looked at by Congress and the abense of an expedited procedure 
in the House for House consideration of a joint resolution of 
disapproval that is, you know, concurrent with and 
complementary to the Senate's procedure.
    Again, as I said, compounding the problem of a flawed 
mechanism is the development of a strong presidential review 
process. That started with President Reagan's establishment of 
the Office of Information and Regulatory Affairs as the 
clearinghouse for all rules during the--in the first month of 
the Reagan administration.
    Those executive orders were very, very effective, and 
Congress was well aware during the '80's and the--and the '90's 
of how effective those executive orders were in sensitizing the 
agencies to the President's agenda and diverting it from 
Congress' agenda and Congress' intent in delegating authority 
with respect to certain kinds of rulemakings.
    Those executive orders and that concept of what has been 
called the new presidentialism have been continued--were 
continued during the Clinton administration and has continued 
today in the Bush administration. The administration of John 
Graham of OIRA has been even more effective than it was during 
the Reagan administration.
    Congress passed the CRA with that in mind and with the 
understanding that even during the Reagan administration, there 
was strong congressional opposition to presidential controls 
that were being developed at that particular time.
    More recently, what we have seen is what I would call a 
denigration by the Executive Branch of Congress' abilities and 
Congress' role in the law-making process and in the oversight 
process. In a very widely cited article, the current dean of 
the Harvard Law School posits the notions of the new 
presidentialism, and suggests that when Congress delegates 
administrative and law-making power specifically to a 
department or agency head, it is at the same time making a 
delegation of those authorities to the President himself, 
unless the legislative delegation specifically states 
otherwise.
    From this, she asserts, flows the President's 
constitutional prerogative to supervise, direct, and control 
the discretionary actions of all agency officials. The author 
states that, and I quote, ``A Republican Congress proved 
feckless in rebuffing Clinton's novel use of directive power, 
just as an earlier Democratic Congress, no less rhetorically 
inclined, had proved incapable of thwarting Reagan's use of a 
newly strengthened regulatory process.''
    And she goes on to explain that, ``The reasons for this 
failure are rooted in the nature of Congress and the law-making 
process. The partisan and constituency interests of individual 
Members of Congress usually prevent them from acting 
collectively to preserve congressional power or, what is the 
same thing, to deny authority to other branches of the 
Government.''
    She then goes on to effectively deride the ability of 
Congress to restrain a President--a presidential intent on 
controlling the administration of the laws. She states, 
``Because Congress rarely is held accountable for agency 
decisions, its interest in overseeing much administrative 
action is uncertain. And because Congress' most potent tools of 
oversight require collective action and presidential agreement, 
its capacity to control agency discretion is restricted. But 
viewed from the simplest perspective, presidential control and 
legislative control of administration did not present an 
either/or choice. Presidential involvement instead superimposes 
an added level of political control onto the congressional 
oversight system. That, taken on its own and for the reasons 
just given, has notable holes.''
    Dean Kagan's observations were like a blueprint for what 
has been occurring during the Bush administration.
    Let me conclude by saying that the CRA reflects a 
recognition of the need to enhance the political accountability 
of Congress and the perception of legitimacy and competence of 
the administrative rulemaking process. It also rests on an 
understanding that broad delegations of rulemaking authority to 
agencies are necessary and appropriate and will continue for 
the indefinite future.
    The Supreme Court's most recent decision, rejection of an 
attempted revival of the nondelegation doctrine, adds impetus 
for Congress to consider several facets and ambiguities of the 
current mechanism. Absent review, current trends of avoidance 
of notice and comment rulemaking, the lack of full reporting of 
covered rules under the CRA, limited judicial review, and what 
I've just pointed out, an increasing presidential control over 
the rulemaking process, is likely to continue.
    As I said, there are two major things that I think should 
be done to help ameliorate this. One is a screening mechanism, 
and the second is expedited procedures. One might say that, you 
know, putting them in legislation would be subject to 
presidential veto. But I believe that you could accomplish this 
by the action of Congress alone without presidential veto, and 
that would be utilizing Congress' rulemaking authority.
    A joint committee that has power to screen and recommend 
with respect to--to the jurisdictional committees and send to 
the jurisdictional committees in the House and the Senate 
recommendations for disapproval resolutions can be established 
by concurrent resolution.
    An expedited procedure in the House needs only a resolution 
of the House to establish. And I think in determining whether--
what the next step to do is it may be too politically difficult 
to pass a law, this might be a way to go.
    Thank you.
    [The prepared statement of Mr. Rosenberg follows:]

              Prepared Statement of Morton Rosenberg, Esq.

    Mr. Chairman and Members of the Subcommittee,
    I am very pleased to be before you again, this time to discuss a 
statute, The Congressional Review Act (CRA), that I have closely 
monitored since its enactment ten years ago yesterday. Your 
commencement of oversight of this important piece of legislation is 
opportune and perhaps propitious.
    As my CRS Report on the decade of experience under the CRA details, 
we know enough now to conclude that it has not worked well to achieve 
its original objectives: to set in place an effective mechanism to keep 
Congress informed about the rulemaking activities of federal agencies 
and to allow for expeditious congressional review, and possible 
nullification of particular rules. The House and Senate sponsors of the 
legislation made clear the fundamental institutional concerns that they 
were addressing by the Act:

          As the number and complexity of federal statutory programs 
        has increased over the last fifty years, Congress has come to 
        depend more and more upon Executive Branch agencies to fill out 
        the details of the programs it enacts. As complex as some 
        statutory schemes passed by Congress are, the implementing 
        regulations are often more complex by several orders of 
        magnitude. As more and more of Congress' legislative functions 
        have been delegated to federal regulatory agencies, many have 
        complained that Congress has effectively abdicated its 
        constitutional role as the national legislature in allowing 
        federal agencies so much latitude in implementing and 
        interpreting congressional enactments.
          In many cases, this criticism is well founded. Our 
        constitutional scheme creates a delicate balance between the 
        appropriate roles of the Congress in enacting laws, and the 
        Executive Branch in implementing those laws. This legislation 
        will help to redress the balance, reclaiming for Congress some 
        of its policymaking authority, without at the same time 
        requiring Congress to become a super regulatory agency.

    The numbers accumulated over the past ten years are telling. Almost 
42,000 rules were reported to Congress over that period, including 610 
major rules, and only one, the Labor Department's ergonomics standard, 
was disapproved in March 2001. Thirty-seven disapproval resolutions, 
directed at 28 rules, have been introduced during that period, and only 
three, including the ergonomics rule, passed the Senate. Many analysts 
believe the negation of the ergonomics rule was a singular event not 
likely to soon be repeated. Furthermore not nearly all the rules 
defined by the statute as covered are reported for review. That number 
is probably at least double those actually submitted for review. 
Federal appellate courts in that period have negated all or parts of 60 
rules, a number, while significant in some respects, is comparatively 
small in relation to the number of rules issued in that period.
    It was anticipated that the effective utilization of the new 
reporting and review mechanism would draw the attention of the 
rulemaking agencies and that its presence would become an important 
factor in the rule development process. Congress was well aware at the 
time of enactment of the effectiveness of President Reagan's executive 
orders centralizing review of agency rulemaking, from initial 
development to final promulgation, in the Office of Management and 
Budget's Office of Information and Regulatory Affairs (OIRA) in the 
face of aggressive challenges of congressional committees. The Clinton 
Administration, with a somewhat modified executive order, but with an 
aggressive posture of intervention into and direction of rulemaking 
proceedings, continued a program of central control of 
administration.\1\ The expectation was that Congress, through the CRA, 
would again become a major player influencing agency decisionmaking.
---------------------------------------------------------------------------
    \1\ See, Christopher Yoo, Steven G. Calabresi, and Anthony J. 
Colangelo, ``The Unitary Executive in the Modern Era, 1945-2004,'' 90 
Iowa L. Rev. 601, 690-729 (2005) (detailing the history of presidential 
control of administrative actions of departments and agencies in the 
Reagan, Bush I, Clinton and Bush II administrations) (Yoo).
---------------------------------------------------------------------------
    The ineffectiveness of the CRA review mechanism, however, soon 
became readily apparent to observers. The lack of a screening mechanism 
to identify rules that warranted review and an expedited consideration 
process in the House that complemented the Senate's procedures, and 
numerous interpretative uncertainties of key statutory provisions, may 
have detered its use. By 2001, one commentator opined that if the 
perception of a rulemaking agency is that the possibility of 
congressional review is remote, ``it will discount the likelihood of 
congressional intervention because of the uncertainty about where 
Congress might stand on that rule when it is promulgated years down the 
road,'' an attitude that is reinforced ``so long as [the agency] 
believes that the president will support its rules.'' \2\
---------------------------------------------------------------------------
    \2\ Mark Seidenfeld, ``The Psychology of Accountability and 
Political Review of Agency Rules,'' 51 Duke L.J. 1059, 1090 (2001).
---------------------------------------------------------------------------
    Compounding such a perception that Congress would not likely 
intervene in rulemaking, particularly after 2001, has been the 
emergence of what has been called by one scholar as the ``New 
Presidentialism,'' \3\ that has become a profound influence in 
administrative and structural constitutional law. It is a combination 
of constitutional and pragmatic argumentation that holds that most of 
the government's regulatory enterprise represents the exercise of 
``executive power'' which, under Article II, can legitimately take 
place only under the control and direction of the President; and the 
claim that the President is uniquely situated to bring to the expansive 
sprawl of regulatory programs the necessary qualities of 
``coordination, technocratic efficiency, managerial rationality, and 
democratic legitimacy'' (because he alone is elected by the entire 
nation). One of the consequences of this presidentially centered theory 
of governance is that it diminishes the other important actors in our 
collaborative constitutional enterprise. Were it maintained that the 
Congress is constitutionally and structurally unfit for running 
democratic responsiveness, public-regardedness, managerial efficiency 
and technocratic rationality, this scholar's suggested response is: why 
bother talking with Congress about what is the best way to improve the 
practice of regulatory government?
---------------------------------------------------------------------------
    \3\ Cynthia R. Farina, ``Undoing The New Deal Through The New 
Presidentialism,'' 22 Harv. J. of Law and Policy 227 (1998).
---------------------------------------------------------------------------
    In a widely cited 2001 article,\4\ the current dean of the Harvard 
Law School, posits the foregoing notions and suggests that when 
Congress delegates administrative and lawmaking power specifically to 
department and agency heads, it is at the same time making a delegation 
of those authorities to the President, unless the legislative 
delegation specifically states otherwise. From this flows, she asserts, 
the President's constitutional prerogative to supervise, direct and 
control the discretionary actions of all agency officials. The author 
states that ``a Republican Congress proved feckless in rebuffing 
Clinton's novel use of directive power--just as an earlier Democratic 
Congress, no less rhetorically inclined, had proved incapable of 
thwarting Reagan's use of a newly strengthened regulatory review 
process.'' \5\ She explains that ``[t]he reasons for this failure are 
rooted in the nature of Congress and the lawmaking process. The 
partisan and constituency interests of individual members of Congress 
usually prevent them from acting collectively to preserve congressional 
power--or, what is the same thing, to deny authority to other branches 
of government.'' \6\ She goes on to effectively deride the ability of 
Congress to restrain a President intent on controlling the 
administration of the laws:
---------------------------------------------------------------------------
    \4\ Elena Kagan, ``Presidential Administration,'' 114 Harv. L. Rev. 
2246 (2001) (Kagan).
    \5\ Kagan at 2314.
    \6\ Id.

          Presidential control of administration in no way precludes 
        Congress from conducting independent oversight activity. With 
        or without significant presidential role, Congress can hold the 
        same hearings, engage in the same harassment, and threaten the 
        same sanctions in order to influence administrative action. 
        Congress, of course, always faces disincentives and constraints 
        in its oversight capacity as this Article earlier has noted. 
        Because Congress rarely is held accountable for agency 
        decisions, its interest is in overseeing much administrative 
        action is uncertain; and because Congress's most potent tools 
        of oversight require collective action (and presidential 
        agreement), its capacity to control agency discretion is 
        restricted. But viewed from the simplest perspective, 
        presidential control and legislative control of administration 
        do not present an either/or choice. Presidential involvement 
        instead superimposes an added level of political control onto a 
        congressional oversight system that, taken on its own and for 
        the reasons just given, has notable holes.\7\
---------------------------------------------------------------------------
    \7\ Kagan at 2347.

Dean Kagan's observations and theories appear to have been almost a 
blueprint for the presidential actions and posture toward Congress of 
the current Administration.\8\
---------------------------------------------------------------------------
    \8\ See Yoo at 722-30.
---------------------------------------------------------------------------
    The CRA reflects a recognition of the need to enhance the political 
accountability of Congress and the perception of legitimacy and 
competence of the administrative rulemaking process. It also rests on 
the understanding that broad delegations of rulemaking authority to 
agencies are necessary and appropriate, and will continue for the 
indefinite future. The Supreme Court's most recent rejection of an 
attempted revival of the nondelegation doctrine \9\ adds impetus for 
Congress to consider several facets and ambiguities of the current 
mechanism. Absent review, current trends of avoidance of notice and 
comment rulemaking, lack of full reporting of covered rules under the 
CRA, judicial review, and increasing presidential control over the 
rulemaking process will likely continue.
---------------------------------------------------------------------------
    \9\ Whitman v. American Trucking Assn's, 531 U.S. 457 (2001).
---------------------------------------------------------------------------
    There have been a number of proposals for CRA reform introduced in 
the 109th Congress that address more effective utilization of the 
review mechanism, most importantly a screening mechanism and an 
expedited consideration procedure in the House of Representatives. Two 
such bills, H.R. 3148, introduced by Rep. Ginny Brown-Waite, and H.R. 
576, filed by Rep. Robert Ney, both provide for the creation of joint 
committees to screen rules and for expedited House consideration 
procedures. H.R. 3148 also suggests a modification of the CRA provision 
that withdraws authority from an agency to promulgate future rules in 
the area in which a disapproval resolution has been passed with the 
enactment by Congress of a new authorization. That provision has been 
seen as a key impediment to the review process. Both proposals are 
expected to receive further consideration.

    Mr. Cannon. You're always provocative, and I really enjoyed 
that testimony. We'll come back in just a few minutes. But 
those are very good points.
    Mr. Gaziano, you're recognized for 5 minutes.

  TESTIMONY OF TODD F. GAZIANO, ESQ., SENIOR FELLOW IN LEGAL 
 STUDIES, AND DIRECTOR, CENTER FOR LEGAL AND JUDICIAL STUDIES, 
           THE HERITAGE FOUNDATION, WASHINGTON, D.C.

    Mr. Gaziano. Good afternoon, Mr. Chairman.
    Thank you for inviting me to talk about the operation of a 
law that too often is neglected.
    In my written testimony, I talk about some of the 
democratic and separation of powers theory that supports this 
legislation. But I'm going to try to confine my oral testimony 
to more practical concerns.
    I want to first turn to an evaluation of the effectiveness 
of the CRA, and I want to talk about the three purposes of the 
CRA. And the first is, as Mr. Mihm has suggested, is to advance 
public record-keeping of agency rulemaking.
    The CRA's legislative history makes clear that the broad 
definition of a rule was chosen for several reasons; one of 
them was to help Congress and its supporting agencies better 
catalogue the corpus of agency rules that affect the public.
    I am somewhat disappointed that compliance has not been 
complete, and I actually think that the incidence of 
noncompliance may be higher than that which GAO has been able 
to record. Anecdotal evidence and investigation by other 
Committees of this House has suggested as much.
    Nevertheless, the catalogue of nearly 42,000 rules and the 
public database that GAO has set up, together with the required 
reports, is no doubt a very valuable resource for Congress and 
for scholars of the regulatory process.
    The second purpose of the Congressional Review Act is to 
change agency rulemaking behavior. Now it's true that the CRA 
has not been invoked as often as its sponsors and early 
commentators expected. But as opposed to the ``glass is half 
empty'' conclusion that Mort talked about, I think that it is 
not wise to conclude that it's necessary that it's had no 
impact on agency behavior and legislative accountability.
    In fact, there is anecdotal evidence that when Congress 
invokes the CRA, particularly during the rulemaking process, it 
can have an effect. What that evidence suggests to me, Mr. 
Chairman, is that it can be a tool to increase Congress' 
leverage when Members choose to use it.
    Now some point to the ergonomics rulemaking and say the 
only time that we can enact a law is when a rule is issued, 
unpopular rule is issued at the end of an Administration that 
isn't supported by the incoming Administration.
    In my written testimony, I explain why I'm not sure that 
that is the case. But even if that is one limitation to the 
rule, that's an important use of the CRA: to put a stop to such 
midnight regulations.
    But I do want to address one other limitation that I think 
has been exaggerated, and that is the assumption that 
Presidents will veto any resolution of disapproval for rules 
that come out of their Administrations. Certainly, it is the 
case that Presidents might consider such vetoes. But in my 
written testimony, I mention three reasons why a President 
might not veto such resolutions of disapproval.
    But even if a President does veto such resolutions of 
disapproval, let me suggest two positive outcomes from the 
standpoint of democratic theory. The first is that the 
President would be more directly accountable for the 
regulation--both he and his Administration would not be able to 
hide behind the ``Congress made me do it. We had no discretion, 
but to issue this particular regulation'' excuse.
    The second benefit, even of a presidential veto, of course, 
that isn't immediately overridden is that once Congress 
expresses its will in that way, it usually can get its--have 
its will enacted in some other way, by adding a rider to a 
different piece of legislation or through other means. Creative 
minds, of course, can certainly influence the enforcement of a 
particular rule and change its operation in the future.
    The third major purpose of the Congressional Review Act is 
to enhance legislative accountability for agency rulemaking. 
And I submit to you that by its action or inaction, Congress is 
now more accountable for agency rules. I think that the CRA was 
designed by its sponsors and does make it harder for both the 
President and Congress to evade their particular share of 
responsibility.
    To the extent that the CRA does have some limitations, I 
certainly believe Congress should make further reforms. But 
Congress is, ultimately, responsible.
    In my remaining time, I just want to mention one 
interpretive issue and three possible reforms, just almost by 
name. The first interpretive issue is that that the courts have 
somewhat disagreed on, and that's the scope of the limitation 
on judicial review that's contained in section 805.
    The key question is this. May a court consider whether a 
rule that has never been submitted to a Congress is in effect? 
And I submit that the better interpretation of the statute is 
that the courts can properly pass on that issue.
    But I'm requesting this Committee or suggesting to this 
Subcommittee, respectfully, that this issue merits special 
attention in the future. No matter what the courts decide about 
this issue, I suggest that this Subcommittee should ensure that 
there's at least limited judicial review of that triggering 
mechanism in the future, even if it requires future legislative 
amendment.
    The other matters that I would commend to this 
Subcommittee's further consideration is I do think that there 
is a desperate need for an OIRA-like organization in Congress. 
I feel somewhat presumptuous--it would be somewhat presumptuous 
of me to suggest exactly what that is, but I also think that it 
makes no sense from a separation of powers standpoint for you 
to be so seriously outmanned in the regulatory review. So I 
think the Committees of jurisdiction also need to significantly 
increase their staff.
    The two other, more dramatic proposals that I would suggest 
are that Congress consider requiring congressional approval of 
major rules. Not make them subject to disapproval, but actually 
require affirmative congressional approval.
    And the final reform that I certainly think is justified is 
to prevent the proliferation of crimes from being defined in 
regulations. I think that if it is worthy to criminalize, 
Congress ought to define the contours of crimes.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Gaziano follows:]

                 Prepared Statement of Todd F. Gaziano




    Mr. Cannon. Thank you.
    Mr. Sullivan, you're recognized for 5 minutes.

TESTIMONY OF JOHN V. SULLIVAN, ESQ., PARLIAMENTARIAN, OFFICE OF 
THE PARLIAMENTARIAN, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, 
                              D.C.

    Mr. Sullivan. Thank you, Mr. Chairman.
    May it please the Committee, thank you for the welcome and 
for the kind words about the Office of the Parliamentarian, 
most especially for the gracious acknowledgment of Lefty 
Sullivan, who I'm told in his Major League career lost but one 
game.
    My predecessor, Charlie Johnson, was with you in 1997, and 
he assured me that this was a very pleasant experience. So I'm 
pleased to be here.
    I am glad for the opportunity to help illuminate maybe one 
part of the factual predicate on which the Committee might 
decide whether to adjust the CRA or whether it's currently 
optimized to meet its desired ends.
    As I indicate graphically in my written testimony, the CRA 
has engendered a tripling of the executive communications 
traffic to the Speaker. This flow of paper poses a significant 
increment of workload in the institution of the House. But, of 
course, this paperwork, mass though it may be, does serve a 
purpose.
    When I read the testimony of my learned colleagues about a 
desirable deterrent effect of the act, it rings true to me. But 
I'm also reminded of the last 10 or 15 years of the Cold War, 
when we saw the key to our own nuclear deterrent shift 
dramatically away from megatonnage and in favor of accuracy.
    I think that the Committee may want to assess whether a 
lesser volume of communications traffic might better optimize 
the oversight of the regulatory Committees of the rulemaking 
process, dwelling greater attention on a more selective 
universe of rulemaking actions.
    I note that the act already differentiates among rulemaking 
actions on the basis of certain hallmarks of salience, and it 
might be time to consider whether additional discriminators 
might be sensible to constrict the flow and dwell stronger 
focus on the remaining stream.
    Certainly, the Office of the Parliamentarian would be 
pleased to work with the Committee and with the staff on trying 
to identify ways to avoid any duplication of effort or any 
undue weight of paper.
    I won't reiterate the rest of the written testimony, brief 
though it may be. I'm pleased to be here and happy to engage 
any questions you might have.
    [The prepared statement of Mr. Sullivan follows:]

          Prepared Statement of the Honorable John V. Sullivan



    Mr. Cannon. Thank you, Mr. Sullivan.
    If I might, Mr. Sullivan, I have just a couple of 
questions. Then we have a series of questions that we'll 
probably send you all that you can use to help us understand a 
little more about what we're doing here.
    But if I might, Mr. Sullivan, you talked about Committees 
of jurisdiction, meaning I suppose authorizing Committees. And 
so, when you're talking about this amazing--and I just looked 
at your chart--this tripling of communications. And of course, 
we're organized by Committees now and have some more and less 
vague Committee jurisdictions. We have Government Reform, for 
instance, which would have some role here.
    But if you--so when talking about the rules of jurisdiction 
and whether or not it makes sense, I think Mr. Rosenberg was 
talking about a Committee or Committees, would it make sense to 
have a Committee that is fairly heavily staffed deal with these 
issues of CRA? And that way, you don't put limiters or, I 
forget the term you used for it, but some way to describe the 
importance of this, but rather you have a Committee that is in 
place that reviews all of it, and we go through a--maybe a 
Committee process?
    So instead of all the Committees of jurisdiction who would 
have a person assigned, does it make sense to have a Committee, 
for instance, obviously, I think this Committee, which oversees 
these activities generally, would have staff to review and deal 
with the paperwork and then focus, as is appropriate, 
politically on what some of these regulations are and, 
therefore, make the determination of importance based upon a 
single Committee overseeing the complex process?
    Do you have any thoughts on that?
    Mr. Sullivan. That sounds worthy of your consideration, Mr. 
Chairman.
    As I understand it right now, until such time as the 
Speaker refers the communication to the Committee of 
jurisdiction over the enabling statute for the rulemaking, the 
only filtering that occurs really is by the words of the 
statute. The discriminators that exist under the status quo are 
just textually recited in the statute.
    And as I understand Mr. Rosenberg's idea, it would be to 
achieve a higher level of granularity in that filtering process 
by having live experts applying their notions of 
discrimination, their own discriminatory sense to rulemakings 
as they come in.
    And that certainly is one way to refine the flow to the 
regulatory Committees so that when they do hit the Committee of 
jurisdiction over the Clean Water Act, the counsel who 
specialize in that area will be able to bring the full force of 
their more concentrated expertise on it.
    Any kind of filtering process I think is worthy of 
consideration. And as I said, right now, the filter is just the 
text of the statute, it might be worth considering putting an 
organ there.
    Mr. Cannon. What I'm wondering is--I've spent a lot of my 
life doing administrative procedure, rulemaking stuff. I worked 
in the Reagan administration on coal mining and really created 
a third-tier of coal mine reclamation regulations. It was an 
amazing process early in my career.
    But I'm wondering if--two things, Mr. Sullivan. First of 
all, what would the rules have to--how would they have to be 
changed for the House to do what I'm about to suggest? And then 
how would it actually, as a practical matter, work?
    As I understand, you have communications now coming to the 
Speaker from the Administration, and those have increased 
significantly. Would it not be fairly simple, and I'm wondering 
about the effectiveness of the process to take those 
communications from the Speaker and then send them to a 
Committee, and that Committee would tend to look at all 
regulations? And to the degree that you needed the expertise of 
an authorizing Committee, there could be some sort of joint 
procedure.
    Now that has to be done in a way that there is actually an 
appropriate use of discretion. But at some point, you have to 
say this is not worth something, and somebody has to--a 
Chairman has to say, ``This is not worth it, this is worth 
it,'' and then follow up on that.
    It would seem to me that that Committee would also require 
a lot of expertise over time, and we have a rule currently that 
term limits chairmen. So I'm giving you sort of an amorphous 
question.
    But just wondering, given the rules today, could we take a 
pathway where you take all of these communications. They go 
through a well staffed process, but a political process that 
then works its will with the majority and minority and also 
works with other Committees, authorizing Committees that have 
the specific or special area expertise and possibly also with 
the appropriating Committees.
    What changes would you see that would have to be made to do 
that? And does it make sense to even pursue that idea?
    Mr. Sullivan. I think that that sort of thing could be 
pursued without touching the statute, although it would be in 
the jurisdiction of the Committee on Rules. The House could 
ordain a 21st standing Committee and confer on it, call it the 
Committee on Filtering Rulemakings.
    Mr. Cannon. Let me just say that it would seem to me that 
making a 21st Committee, maybe it would justify it. But what 
you would have in that Committee, it would not--let me just ask 
you this.
    If you took a sitting Committee, either Government Reform 
would be possibly appropriate or Judiciary, where I think it 
actually is appropriate, and expanded one of the Subcommittees, 
and maybe you got rid of term limits or something like that. So 
you could have somebody who actually liked doing it, would do 
it over a longer period of time and add some continuity. It 
would seem to me that that makes some sense as opposed to 
creating a new Committee. So I realize we're now dealing with 
some pretty big things here.
    Mr. Sullivan. Conceptually, it's exactly the same thing. 
The House could just add a new element to the subject matter 
jurisdiction of the Judiciary Committee or of the Government 
Reform Committee that said ``review of executive rulemaking 
actions'' and tell that Committee to have one of its 
Subcommittees or a new Subcommittee become expert at filtering 
and at ushering recommendations to the Committees of regulatory 
jurisdiction.
    Mr. Cannon. And would the House need a rule change--part of 
that rule change would be and so communications to the Speaker 
would then be delegated to that Committee?
    Mr. Sullivan. If Rule X said that that was the Committee 
that had jurisdiction over executive tenders of rulemaking 
actions under the CRA, then the Speaker would refer them to 
that new jurisdiction instead of his current practice of 
referring them to the sundry Committees who have enacted the 
enabling statutes for these rulemaking powers.
    Mr. Cannon. Do you have a recommendation in mind? Your 
job--I don't mean to put you in an uncomfortable position, but 
your job is to figure out how the rules work, and we're now 
suggesting a new context rule.
    Would you put jurisdiction in all of the authorizing 
Committees to review regulations, or would you see it better 
working through either a new Committee or as a new Subcommittee 
of one of the existing Committees?
    Mr. Sullivan. I think that's too substantive a question for 
a proceduralist like me.
    Mr. Cannon. But procedurally, we don't have a problem doing 
that if we decide to do something like that?
    Mr. Sullivan. No. And the basic philosophy of the Committee 
system is to develop and apply expertise in compartments, and 
maybe this is a compartment in which the House would like to 
develop and apply expertise on a special basis.
    Mr. Cannon. And what we have now is just untenable, as your 
charts show. We have this massive communication with no--we 
haven't changed how we operate in the context of this massive 
communication, and then we get back to what Mr. Rosenberg 
called our dashed hopes or the dashed hopes of people who 
wanted to see a little more of this happening. So there is some 
high inconsistency here.
    Let me just say, anybody else want to comment on how we 
should do this? That is, a new Committee or using existing 
Committees and having a new Subcommittee or as opposed to using 
the current--the authorizing Committees?
    Sorry, Morton?
    Mr. Rosenberg. I could comment on that, just to be 
provocative.
    What we have here is a congressional process. You know, in 
order to do what the framers of this legislation wanted to do, 
they had two houses involved. And what they--what wasn't 
thought through or didn't realize the problems at the time is 
that in order to--there are so many authorizing Committees, 
jurisdictional Committees out there, as you're pointing out, 
what might be a solution is not simply a special Committee, but 
a joint Committee, which has only the authority to recommend 
with respect to who will screen, has staff enough to make some 
analyses of rules that come over, pick out the particular ones 
that appear to be appropriate for congressional review.
    There would be House Members and Senate Members. And the 
recommendations would be sent to the jurisdictional Committees 
of each House with a recommendation, if it's such, that they 
exercise their authority and issue a--you know, file a 
resolution of disapproval.
    It has a lot of benefits, it seems to me, because, one, it 
provides the screening mechanism necessary, it provides some 
necesary expertise, and it also may take care of the political 
problem of taking away jurisdiction from current jurisdictional 
Committees.
    What happens is those Committees have recommendations, and 
those recommendations are up to the jurisdictional Committees 
to go to the expedited procedures, you know, to formulate that.
    I think that while your Committee would be a good one with 
regard to looking at this, it would probably be very difficult 
to get everybody to agree, even a House resolution, you know, 
of vesting you with all that authority. It's a problem that we 
see with the House Homeland Security Committee.
    Mr. Cannon. I'm hoping most people think this is boring and 
not worthy of their attention. [Laughter.]
    Mr. Rosenberg. Just one idea. I'm for a separate Committee, 
and I'm much more for a joint Committee that helps both houses 
do the job.
    Mr. Cannon. Thank you.
    Mr. Gaziano. In my written testimony, I said that I'm 
reluctant to say too much about this because the perfect 
sometimes is the enemy of the good in reform. And I think that 
the imperative is that you do something, that you create some 
sort of structure and increase staff to help with this.
    But I--but I do think I know why, and here I may be 
stepping out of my--you know, into my personal memory versus 
the public record--why the parliamentarian was given the task 
of making referrals because: that was who everyone could agree 
with. That's the parliamentarian's traditional job.
    I think there was an understanding that it would 
significantly increase their office workload. But let me 
suggest a couple of possibilities. One certainly is that 
Congress recognize that the parliamentarian's office at least 
needs sufficient increased manpower and staff or an adjunct or 
whatever to help with those referrals.
    There is a concern by the authorizers that any other 
Committee but their Committee wouldn't have the expertise to 
know when the rulemaking is a good or bad rulemaking. So I 
think that you want to avoid the perfect being the enemy of the 
good.
    Another possibility is to create more expertise somewhere 
else in Congress, whether it then advises the parliamentarian's 
office or the individual Committees. But I think part of what 
the permanent structure of that Committee would be is expertise 
in cost-benefit analysis and some cost-cutting expertise about 
the rulemaking process.
    So there would be some permanent staff like the OIRA staff. 
And beyond that, you know, I think that there are these other 
issues and concerns that might come up. I would love for this 
Committee or any Committee to retain the jurisdiction, but I 
would fear that your ``below the radar screen'' approach might 
not go unnoticed as the legislation moved forward.
    Mr. Cannon. And here I thought you were a person of great 
historical perspective. Given the attention these matters have 
had, I'm fairly sure the radar screen is not so sensitive.
    I'd like to apologize for Mr. Watt, who--we had late votes 
and then an emergency meeting, and so he was not able to get 
down here and join us.
    And I have just one other question sort of following up on 
this question and going back, I think, really to Mr. Mihm and 
Mr. Rosenberg talking about dashed hopes or talking about the 
number of reviews and these sorts of things.
    What if you changed the premise of CRA away from a 
disapproval and to a requirement that Congress affirmatively 
act. Now that changes the nature of this discussion about what 
Committee it would go through. What it would mean, as a 
practical matter, is that we pass a lot of legislation all at a 
time, but it would--it would meet many of the criticisms we've 
had of the CRA.
    Assume for a moment, it's politically possible. Does that 
make sense? And I think that most of you all would have some 
comment on that.
    Do you want to start? Go ahead, Mort. Sure.
    Mr. Rosenberg. Seven years ago I suggested that in an 
article in the Administrative Law Review, That the most 
effective way of controlling administrative regulations is 
through a process whereby there has to be affirmative approval 
of regulations.
    This creates some problems. If you have all rules that are 
subject to it, you have an enormous volume of rules that are 
going to come across. But I think that problem could be solved, 
and I addressed that in the article that I wrote in 1999. I 
believe that a screening committee that would deal with this 
could use a deeming process and take care of about 99.9 percent 
of the rules.
    That is, deeming that rules that are sent over passed on a 
particular day, a CRA Wednesday that takes place each month, 
and you wouldn't have more than a 30- or a 60-day delay for 
99.9 percent of the rules. And those that are pinpointed as 
needing more reviewwould then go through a more rigorous 
approval process.
    I think it could be created. I think it's constitutional. 
And assuming it's politically possible, I think that is the 
most viable way to go and the most effective way from Congress' 
institutional point of view.
    Mr. Cannon. Would you get us a copy of the article you 
referred to for the record
    Mr. Rosenberg. Certainly.
    Mr. Cannon. I'd appreciate that.
    Chris?
    Mr. Mihm. Mr. Chairman, we haven't looked at this issue 
directly, but I'd offer just two kind of broad observations on 
this.
    One is that in response to your earlier question and some 
of Mr. Sullivan's charts, we talked about the enormous increase 
in workload and burden on the Congress that was required to 
review these things after the fact. It probably, that would be 
augmented several fold perhaps if Congress wanted to review 
them before implementation, that is, to pass on them.
    Again, it's Congress' judgment as to whether or not it 
wants to go down that road. But I would just observe that it 
would probably entail quite a bit of additional work on behalf 
of the Congress, even taking, I think, context, some point that 
you could just focus on the major rules which would be the 610 
or so.
    The second thing that I would just observe, and this gets 
back to the broader agenda of this Subcommittee and in 
particular the hearing that you held last November, is that the 
Congress may want to spend more time looking more at the back 
end of the regulatory process.
    That is, you know, one of the things that's really flown 
below the radar screen is after regulations are put in place, 
we almost never go back and say, ``Gee, did we get what was 
promised as a result of this?'' You know, we were promised 
either savings or better health or increased, you know, safety 
or whatever the case may be.
    And in many cases, that probably plays out, but I'm willing 
to bet in some cases it does not. And we never go back and look 
at that. And so, a kind of a more retrospective analysis or 
focus on retrospective analysis we think would be very 
beneficial.
    Mr. Cannon. Does that mean like a 3-year sunset? So suppose 
for a moment you had a joint Committee or each house had a 
Committee, and we had an expedited process. So something worked 
here. Would it make sense then to add a sunset to regulations 
so they came up automatically for political/congressional 
review?
    Mr. Mihm. I'm not sure that I can go so far--I mean, we 
haven't done the work to justify whether or not there would be 
sunset. But certainly, it would be beneficial to require at 
least a periodic re-examination and perhaps in a report to the 
Congress. And that's something that we could be helpful in, in 
GAO, and we've tried to be in the past. To look at this, are we 
actually getting from a particular rule that was promised when 
we promulgated it, especially some of these major rules?
    Mr. Gaziano. Mr. Chairman, 10 years ago almost, last month, 
the House was set to vote on H.R. 994, the Sunset and Review 
Act, which, by the way, is maybe something you want to look at 
again, which would have sunsetted regulations in the 
congressional--in the CFR by part. So that's one option.
    As far as the major rule, I think that what Mort has 
suggested is one approach. I think that this Subcommittee held 
a hearing about 9 years ago where the alternative to require 
major rules to receive affirmative authorization was discussed. 
I know that the sponsors of the CRA 10 years ago anticipated 
that, and that's why they created in the statute that 
distinction between major and nonmajor rules.
    That did not exist in the statute at the time. It was only 
a function of executive order, and they codified that 
distinction so that some future Congress could make that. That 
would be roughly 61 rules a year divided between all the 
relevant authorizing Committees.
    And it was understood by those who hoped that that would 
some day be considered by Congress that, of course, it 
wouldn't--it doesn't take as much legislative record to decide 
whether a rule should be enacted into law or not. That's 
already received the agency's attention. So it would not--let's 
say if a given Committee had five or so a year, it would not 
take the same level of attention as passing five other pieces 
of legislation.
    But the democratic theory was major rules have bigger 
impact on the American economy than most laws Congress passes, 
at least if it's in a major rule. Maybe you could define it in 
some other way. But at least if it's a major rule, Congress 
ought to enact it into law.
    Mr. Rosenberg. There's a problem here that can be overcome 
perhaps. Right now, under the CRA, a major rule is defined as 
major by OIRA, the OIRA Administrator. Who is going to do this 
differentiating between major and nonmajor rules? Congress 
can't do it on a piecemeal basis. That would probably be Chadha 
and be a problem.
    That's why I struggled with that in writing the article 
about how you could do this. I've often thought of a tiered 
kind of structure where, but who would designate what it is? 
Could you write a definition that would cover all the rules 
that you want to come over?
    There are some rules that nobody's going to think of as 
major until they explode upon you or they're looked at. So 
that's a problem that has to be addressed from a constitutional 
point of view, as well as a pragmatic point.
    Mr. Cannon. Which is why you focus on a joint Committee. 
Personally, I'm not sure that works as well as two Committees 
that would have responsibility.
    Mr. Rosenberg. Well, you don't have a joint Committee if 
you have----
    Mr. Cannon. But you have a single----
    Mr. Rosenberg  Joint Resolution of approval, then you don't 
need a joint Committee. But you still have----
    Mr. Cannon. You have the underlying problem?
    Mr. Rosenberg. Yes.
    Mr. Cannon. Which means you don't--it doesn't work through 
all the--the authorizing Committees because there's no way to 
have coherence.
    Mr. Rosenberg. But there can be a process whereby there can 
be a screening of all rules that come over as proposed rules. 
Then there can be a deeming process which gets rid of most of 
them and puts them into law after 30 or 60 days.
    Mr. Gaziano. I don't know that some people would like the 
effect of 42,000 laws, and courts having to interpret them. But 
there are--but Mort is right about the problem. There are two 
other possible solutions. Right now, there is no--Congress, in 
its wisdom for various reasons of expediency, decided not to 
make the OIRA determination subject to judicial review.
    The two alternatives, if you were going to enact this, I 
think, very important reform, would be to make the OIRA 
determination subject to judicial review. So there is some 
risk, and that does avoid the Chadha problem. And that's why 
all regulations still have to come to Congress so that 
circumvention can be dealt with.
    So that--and then you still need, I think, these other 
Committees because major rules are the minimum that Congress 
should be enacting into law. But then you make the nonmajor 
ones subject to--still subject to disapproval, but more 
effectively.
    Mr. Cannon. Let me ask, John, suppose you had a single 
Committee of jurisdiction without the subject matter expertise. 
Is it possible to have a rule that allows or requires the joint 
Committee or the single Committee to work with other 
Committees? You know, we do that currently with the concurrent 
jurisdiction in Committees on some matters.
    Is there a way to do that with a Committee that handles all 
of them and then somehow coordinates with Committees of 
expertise?
    Mr. Sullivan. Yes, Mr. Chairman.
    For example, you could contemplate that this panel would 
report not to the House, but to its sister Committees. It would 
make recommendations to the Committees that enacted the 
enabling statutes in the first instance.
    Mr. Cannon. So serial jurisdiction?
    Mr. Sullivan. Yes, sir.
    Mr. Cannon. Interesting. All right.
    Can I ask one other question? This is sort of technical, 
but if we had reports submitted electronically, is it possible 
to speed up this process, from your perspective as the 
parliamentarian, so that you take and delegate electronically 
some of this material? Would that speed up the referral process 
out of your office?
    Mr. Sullivan. It might speed up the referral process. It 
certainly would make more efficient the movement of the paper 
and the tracking of submittal dates and so forth, the things 
that the clerk's office has to do with the flow.
    The parliamentarian would still have to examine the 
substance of the rulemakings to discern the Committee 
jurisdictions in them, but I think it would materially assist 
the Legislative Resource Center and the others who have to move 
this paper.
    Mr. Cannon. So do we need to do something to establish a 
requirement by the Administration to in some consistent manner 
submit these things electronically?
    Mr. Sullivan. I assume that that might require that you 
visit the statutory text. I'm personally leery about going 
virtual on anything. Committees frequently want to 
teleconference instead of meet together face to face, or poll 
their Members instead of having them in the same room and 
voting, we constantly try to impress on them notion of 
Jeffersonian collegiality and the importance of Members being 
together in the flesh. So crossing the threshold of a virtual 
submission I would want to be very cautious about that.
    But in terms of batch processing, if the comptroller 
bundled communications and had a covering electronic submission 
that could manage the submittal dates and the tracking and that 
sort of thing, I think that would be very helpful.
    Mr. Cannon. Great. Thank you.
    Obviously, this is a panel of experts who've been here 
before, and you all have given very thoughtful, insightful 
testimony on this issue. We appreciate your involvement in the 
broader APA review.
    And with that, we will stand adjourned.
    [Whereupon, at 3:43 p.m., the Subcommittee was adjourned.]


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               Material Submitted for the Hearing Record



                                 
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