Strengthening Oversight: GAO’s Plan for Congressional Oversight of Agency Rulemaking

On July 5, the White House released its two-year executive branch regulatory agenda, which highlights the agency’s priorities for the next six months. With a record number of major new directives that will affect every aspect of American life, addressing the ambitions of the government’s unofficial “fourth estate” is an important issue for policymakers this election year.

As it turns out, the omitted December 2023 Government Accountability Office (GAO) report titled Options to strengthen congressional oversight of rulemaking and create an Office of Legal Counsel, identifies three potential areas of improvement that should enjoy bipartisan support.

1. Establishment of a new regulatory oversight office. Currently, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget oversees the rulemaking process. However, the president appoints both OIRA directors and agency heads, creating an overlapping agenda of bureaucratic expansion rather than a watchdog ethos. With the additional impetus of Biden’s new Circular A-4 guidance, OIRA has lost its independent focus, becoming more of an enabler of new government programs than a watchdog.

A new office with congressionally appointed directors is one option described by the GAO. Proposals have been circulating since at least 1999, when Sen. Richard Shelby (R-AL) proposed a Congressional Office of Regulatory Analysis to analyze and report on significant regulations. Regardless of the name, the new office would need a solid anti-regulatory ethos to ensure it doesn’t follow the path of OIRA’s advocacy.

2. Reform of the regulatory review process. Congress could also change the way agencies make regulations by setting a regulatory budget, mandating periodic reviews of previous regulations, and implementing sunset requirements.

In addition, authorizing partial congressional disapproval of legislation could be beneficial. Under the current structure of the Congressional Review Act, Congress can only invalidate entire legislation, which rarely happens. If Congress could invalidate specific clauses, elected officials would have more control over the rulemaking process.

3. Changing the functions of the bodies involved in the supervision process. Another alternative to modifying the rulemaking process is for congressional committees to better anticipate future regulations and estimate costs and benefits before they are delegated to agencies. GAO could also report the total number of regulations in force and their total costs, which it does not currently report.

Notably, the GAO report omitted suggestions for improving oversight of ambiguous regulatory issues or the guidance documents, memoranda, and notices that agencies publish that impact regulatory compliance.

These reforms could strengthen checks and balances on Capitol Hill, but the GAO misses the heart of the oversight problem: Congress’s delegation of authority. The report’s authors confidently claim that “Congress shall have broad powers of oversight and investigation,” but they never mention the Constitution’s mandate that “All legislative powers are hereby vested in Congress.”

So while implementing regulatory oversight reforms is worthwhile and even necessary, the problem of regulatory overreach cannot be fully resolved until Congress regains its legislative responsibilities. Most of the problems with downstream oversight would not exist if Congress legislated according to the Constitution. The regulations that were passed would then be the result of deliberations and compromises by elected officials—as government should operate—not by unelected career bureaucrats.

Restricting the growing control over Americans’ lives will remain the order of the day until Congress implements reforms similar to those proposed by the GAO or takes more drastic action to return legislative responsibilities to Capitol Hill.