Improve Agency and Congressional Relationships

Improve Agency and Congressional Relationships

BACKGROUND

Much of what an agency can or cannot do to solve a problem is dependent
on the legislation that Congress passes requiring or authorizing an
agency to take action. Agencies often complain that statutory
constraints imposed by Congress are major impediments to more efficient,
effective, and sensible regulation.

Legislation that is overly restrictive, too detailed, or poorly
conceived or drafted leads to a number of problems. It can force
agencies to spend resources on minor or nonexistent problems while major
problems remain unaddressed. It is normally the agency that is blamed
for issuing "bad" regulations--the agency's defense that Congress gave
the agency no choice may not be heard.[Endnote 1] "Bad" regulations
gradually destroy the credibility of the agency and are likely to make
even its good regulations less acceptable.

Problematic legislation comes in a variety of forms.  First, legislation
may require an agency to issue regulations that do not solve a problem
and, therefore, do not benefit society at large. For example, the
Surface Transportation Assistance Act of 1982 required the Secretary of
Transportation to issue regulations requiring "splash and spray
suppression devices" (fancy mud flaps) on trucks to decrease the amount
of spray from trucks that could hinder visibility for car
drivers.[Endnote 2] The Department of Transportation's (DOT) testing
determined that the fancy mud flaps decreased the amount of spray on car
windshields to such a slight degree that it did not improve the car
driver's visibility and, thus, had no safety benefits. DOT, however, had
no alternative other than requiring fancy mud flaps or seeking a
statutory change.[Endnote 3]

Second, overly restrictive legislation does not allow agencies to change
regulations as circumstances change. For example, Congress may require a
regulatory scheme based on a particular assumption of cause and effect.
If further research shows that assumption to be false, the agency may
not be allowed to change its approach accordingly and may impose
unnecessary costs on the economy.

Third, legislation that requires command-and-control or overly detailed
regulation may be preventing the agency from using or developing an
innovative approach that would be more effective or efficient.

Fourth, legislation may impose unrealistic (if not outright impossible)
deadlines, which either make the agency look bad when the deadlines are
not met or may preclude the agency from doing the necessary background
work for the rule.[Endnote 4] In 1990, the General Accounting Office
studied three statutes that required the Department of Education to
issue 83 regulations in 240 days. The sheer volume and complexity of the
legal and policy issues involved made it virtually impossible for the
Department to issue the regulations within the statutory
timeframe.[Endnote 5]

Fifth, legislation may have unintended consequences.  For example, a
statute might inadvertently preclude the most common device for meeting
a statutory goal by setting requirements that the device cannot meet.

NEED FOR CHANGE

Legislation that is overly restrictive, too detailed, or poorly
conceived or drafted results from a variety of circumstances, some of
which are not unique to the regulatory process--distrust between the
executive and legislative branches, lack of congressional technical
expertise, congressional failure to understand the difficulties in
implementing a regulatory program, and lack of common understanding of
complex issues between the legislative and executive branches. This
general problem as it relates to regulatory problems is briefly
discussed here. A more comprehensive discussion of relations between the
executive and legislative branches and recommendations for improving
them is contained in the National Performance Review Accompanying Report
Creating Quality Leadership and Management.[Endnote 6]

Distrust between executive and legislative branches is one of the major
reasons for legislation that is overly restrictive, too detailed or
poorly conceived or drafted. Some tension in the relationship between
Congress and the executive branch is inherent in our system (especially
when two branches are controlled by different political parties).
Agencies should perceive Congress as an entity that imposes constraints
on the executive. That is a result of the checks and balances
established in the Constitution.

Nonetheless, the tension between the executive branch and Congress has
risen too high.[Endnote 7] A panel of the National Academy of Public
Administration recently concluded that, "[t]he outright confrontation
and increasingly competitive relationship between the two branches has a
high cost: a political system more and more unresponsive to national
problems and unaccountable to the American people for addressing those
problems."[Endnote 8] It is time to find a better balance.

Congressional distrust of agencies affects legislation in a variety of
ways. In the past decade, Congress was motivated to write overly
prescriptive legislation because it feared that an administration that
disagreed with congressional policies and goals would substitute
administration policy for congressional policy when statutes were
ambiguous or flexible.[Endnote 9] Congressional concerns about agencies'
inability to issue regulations in a timely fashion, exacerbated by the
perception that the Office of Management and Budget (OMB) was holding up
agency rules, resulted in Congress imposing statutory deadlines with
"hammers" (like that for the food labeling rule) that would impose rigid
statutory obligations on private parties if the deadlines were not
met.[Endnote 10]

Some problems in legislation also result from a lack of understanding
about how agencies work, emerging issues, or the arcane details of
existing programs.  Very few Members or Hill staffers have worked in
agencies or appreciate the complexities of implementing the statutes
they write. Agencies have expertise that Congress lacks in specific
fields and about the details of existing programs. Although many Members
and Hill staffers become quite knowledgeable about programs they
oversee, when new issues or scientific breakthroughs occur, Congress and
the administration (as well as federal judges) often lack a common
understanding of the problems and emerging issues (including an
understanding of where the experts disagree).[Endnote 11]

When the administration supports legislation, agency staff provide
technical expertise and drafting advice to Congress. This help can be
very useful to Congress and, thus, to the agency. It sometimes comes too
late, however, because of the time it takes to reach an
administration-wide policy on legislation.[Endnote 12] In addition, in
the past, some agencies refused to give assistance if the administration
disagreed with the legislation. When such legislation passed, though,
agencies had to implement it--whether or not they had been able to
correct technical glitches.

Other agencies have taken steps to diminish drafting problems, even with
legislation with which the administration disagrees. The Department of
Agriculture provides a technical drafting service to Congress. Upon
written request from a member of Congress or a congressional committee,
staff attorneys in the Office of the General Counsel will draft proposed
legislative language implementing the requested policy. After clearance
within the General Counsel's office, the proposed language is sent back
to Congress. The Department makes it very clear that, even though its
staff has drafted the legislation, that does not mean that the
administration supports the legislation. The service is provided to all
requesters regardless of the administration's position.[Endnote 13] The
U.S. Fish and Wildlife Service and the Minerals Management Service of
the Department of Interior provide similar services.[Endnote 14]

In addition to enhancing an agency's relationship with Congress,
providing technical drafting cuts down on the unintended consequences of
legislation. When the policy goal is to change a program only partially,
the agency's experts are more likely to know how to limit or minimize
changes to other parts of the program. The agency's experts should also
be more sensitive to implementation problems.
 At first blush, it may seem strange to offer to draft legislation with
which the agency may disagree, but USDA, the Fish and Wildlife Service,
and the Minerals Management Service do not believe that doing so has
resulted in legislation passing that would not otherwise have done
so.[Endnote 15] Although helping to draft legislation does provide some
assistance to the legislation's proponents, it also helps the agency.
If the agency experts do not draft or comment on statutory language, it
is likely to be written by someone with less understanding of the
program, of the ramifications of the legislation, and of implementation
problems.

 
Cross-References To Other Npr Accompanying Reports

Rethinking Program Design, DES01: Activate Program Design as a Formal
Discipline.

Creating Quality Leadership and Management, QUAL04:  Improve
Legislative-Executive Branch Relations.

Endnotes

1. For example, President Bush faced a very difficult political problem
in the summer and fall of 1992. The National Corn Growers Association
and the ethanol industry claimed that a rule proposed by the
Environmental Protection Agency (EPA) would preclude ethanol mixed with
gasoline from meeting a federally ordered program requiring
cleaner-burning reformulated gasoline. They wanted EPA to allow a
special waiver for gasoline mixed with ethanol. The fact that the Clean
Air Act did not allow EPA to grant the requested waiver did not stop
this political pressure, nor did it stop a Sense of the Senate
resolution [Congressional Record, Senate (September 8, 1992), p. S12893]
that criticized the Bush Administration's proposed rule. Rosewicz,
Barbara, "Big Ethanol Problem for Bush Prompts White House to Mull
Special Concessions," The Wall Street Journal (September 8, 1992), p.
A3; Babcock, Charles R., "Bush's Sidestep on Ethanol's Fueling Dispute,"
The Washington Post (September 28, 1992), p. A3.

2.   414 of Pub.L. 97-424, 49 U.S.C. App.   2314 (1988).

3. The Department of Transportation (DOT) eventually succeeded in
getting this requirement modified (Surface Transportation and Uniform
Relocation Assistance Act of 1987, Pub.L. 100-1 205). Seeking repeal or
modification of problematic statutory requirements can be a difficult
task, particularly where the requirements are part of a statute that
required a great deal of political compromise to pass initially.

4. Administrative Conference of the U.S., Recommendation 78-3, "Time
Limits on Agency Actions," 1 C.F.R.  305.78-3.

5. U.S. General Accounting Office, Education Regulations: Reasons for
Delays in Issuance, GAO/HRD- 91-4BR (Washington, D.C.: U.S. General
Accounting Office, November 15, 1990), pp. 1-2.

6. See "QUAL04: Improve Legislative-Executive Branch Relations," NPR
Accompanying Report, Creating Quality Leadership and Management
(Washington D.C.: U.S.  Government Printing Office).

7. Broder, David S., "Hill's Micromanagement of Cabinet Blurs Separation
of Powers," Washington Post (July 25, 1993), pp. A1, A16, A17.

8. A Panel of the National Academy of Public Administration, Beyond
Distrust: Building Bridges Between Congress and the Executive
(Washington, D.C., January 1992), pp. 2-3.

9. The motivation to grant agencies only very limited discretion may
have been increased by the Supreme Court's decision in Chevron USA, Inc.
v. NRDC, 467 U.S. 837 (1984), which said that a court would uphold an
agency's reasonable interpretation of its statute if the statute was not
clear on its face.

10. When Congress passed the Nutritional Labeling and Education Act of
1990, Pub. L. 101-535, it was "tired of what it regarded as the Food and
Drug Administration (FDA) and White House foot-dragging on important
regulations." Gladwell, Malcolm, "Interagency Fight Puts Overhaul of
Food Label Rules on Bush's Plate," Washington Post (November 15, 1992),
pp. A1, A24. The statute gave FDA one year to issue a proposed labeling
rule and another year to finalize it. 2(b)(1) of the Act. If the final
rule deadline was missed, the "hammer" fell and FDA's proposed rule
would become effective. 2(b)(2) of the Act. When this occurred at the
end of 1992, it caused confusion among the industry and the public, and
even greater risk of litigation over the eventual final rule.

11. Carnegie Commission on Science, Technology, and Government, Risk and
the Environment: Improving Regulatory Decision Making (Washington, D.C.,
June 1993), pp. 54-63.

12. Interview with House Government Affairs Committee Staff, June 8,
1993.

13. Telephone interview with James Michael Kelly, Associate General
Counsel, Department of Agriculture, August 16, 1993.

14. Telephone interview with Owen Ambur, Chief, Office of Legislative
Services, U.S. Fish and Wildlife Services, Department of the Interior,
July 22, 1993; telephone interview with Stephen Shaffer, Chief,
Congressional and Legislative Affairs, Minerals Management Services,
Department of the Interior, July 22, 1993.

15. Telephone interviews with James Michael Kelly, Owen Ambur, and
Stephen Shaffer, see supra notes 13 and 14.