Senators James Lankford (R-OK) and Heidi Heitkamp (D-ND) addressed more than 300 policy analysts from government, academia, nonprofits, and the private sector gathered in Washington, DC for the Society for Benefit-Cost Analysis annual conference on March 17. The senators, who are chairman and ranking member of the Senate Regulatory Affairs and Federal Management Subcommittee of the Homeland Security and Government Affairs Committee, spoke about the need for institutional change to improve regulatory accountability, with Sen. Heitkamp noting the “the very legitimate concerns in America that we are run amok in terms of our reach in regulation.”
Among other topics, the senators talked about the delegation of legislative power to administrative agencies and the deference they enjoy, a subject on which they had held their second hearing earlier in the day.
Senator Lankford said, “When an agency—any agency—has the ability to be able to look at any regulation and think ‘this is close enough to permissible construction [that] I think I can get away with this,’ in the strangest of ways the agency is writing a new statute.”
“In our basic constitutional system all legislative powers reside in Congress because all legislative power ultimately is to reside with the American people,” he continued. “If some legislative power is given to an agency, then we’ve got a whole different set of problems.”
Senator Heitkamp agreed, and attributed the problem to “laziness and risk aversion on part of the Congress.” Using the Dodd-Frank Act, the Affordable Care Act, and Waters of the United States as examples, she said, “We’d rather write nasty letters to regulators than to actually take responsibility for making the decision ourselves…. [We] do aspirational legislation and then yell when the regulators get it wrong. That’s the world we’re in because we don’t do our job in the United States Congress.”
The two senators have been working closely on regulatory reform and have voted out of committee several bills aimed at improving regulatory procedures and analysis. Whether their ideas gain traction in the full congress and the administration is another matter. They recognized that they have built consensus in a number of areas, but when asked about their success, Sen. Heitkamp demurred that they wouldn’t be successful until they “passed a public law that actually changed outcomes.”