Repealing Regulations, Sort of

Last month, the Senate passed S.J. Res. 17, a resolution to rescind new broadcast media ownership rules announced by the Federal Communications Commission (FCC) in June. The rules would allow for the "cross-ownership" of newspapers, radio stations, and television stations within the same market by a single firm, and would allow television networks to own local stations reaching up to 45 percent of the national audience, instead of the current 35 percent limit. The rules have been stayed for judicial review by a Philadelphia federal appellate court. Although the joint resolution passed 55-40 in the Senate, Republican leaders in the House of Representative have promised to kill it, and the White House has threatened to veto any such measure.

Even more interesting than the debate on the floor of the Senate over the media ownership rule, however, is the nature of the joint resolution itself. Under the Congressional Review Act, a part of the Small Business Regulatory Enforcement Fairness Act of 1996, federal agencies must notify the leadership and parliamentarians of both the House and the Senate, as well as the General Accounting Office, of all new rules. Legislators then have 60 days to object to a rule. If a legislator does protest a rule, he may file a "joint resolution of disapproval" (JRD), which is then referred to the appropriate committee and treated like a bill. In the Senate, a petition signed by 30 members places the resolution directly on the legislative calendar. Significantly, no amendments or filibusters are allowed during Senate debate on the JRD. Should the JRD pass both chambers and be signed by the president, it is as if the rule in question never existed, and agencies are barred from introducing significantly similar rules in the future.

The JRD presents Congress with a great tool for reigning in overambitious federal agencies. In the seven years since Congressional Review Act went into effect, however, it has very rarely been used, and has only once resulted in a successful disapproval. The lone success was in overturning a controversial Clinton-era Occupational Health and Safety Administration (OSHA) "rule" (actually 608 pages of regulations) regarding the forced implementation of ergonomics programs in businesses and the nationalization of workers' compensation for "ergonomic injuries." The rule was announced during the last days of the Clinton Administration and rescinded on March 20, 2001. This all leads me to wonder: Why hasn't the JRD been utilized more often, particularly during the years Republicans, who periodically pay lip service to limited government, have controlled Congress?

Congress should improve the JRD process by expanding its scope to include all federal rules and regulations on record, not just those abuses committed within the past 60 days. It should, furthermore, engage in a comprehensive review of all federal agency regulations and repeat this practice frequently. An even better solution would be for Congress to permit only regulations that have earned the approval of its elected members, rather than to acquiesce to the will of unelected bureaucrats. By reclaiming its rightful authority and responsibility, legislators would be spared the trouble of having to clean up messes caused by regulations that should not have been issued in the first place, and the accompanying increase in accountability would serve as a small check on the unbridled growth of government.

Even if S.J. Res. 17 does somehow pass, it will only represent a partial victory for foes of government regulation, as some of the main provisions of the rule in question, such as the caps on the size and scope of television networks, do not altogether repeal FCC regulations, but merely modify and relax existing regulations. The nation is clearly in desperate need of regulatory relief. The administrative costs of federal regulations will total approximately $30 billion this year, up 59 percent just since 2000! A quick look at the regulatory situation in California – surveys of business executives confirm that the state's business climate has gone from best in the nation to worst in just the past few years – will reveal how regulation is driving companies (and thus jobs) from the state and strangling the economy. What is needed is total repeal of interventionist regulations, not regulatory tinkering (which usually only adds to the problem).

Sadly, the era of big government is not over, as government budgets – and deficits – continue to grow. Individuals and businesses have been drowning in red tape for years. As David Hume observed in 1742, "It is seldom that liberty of any kind is lost all at once. Slavery has so frightful an aspect to men accustomed to freedom that it must steal in upon them by degrees and must disguise itself in a thousand shapes in order to be received." Government continues to encroach upon our liberties by degrees, and unchecked regulation is a large part of this usurpation. It is time for Congress to demonstrate a modicum of vigilance for our precious freedoms and relieve the regulatory burden.

October 16, 2003