Philip Wallach and Kevin R. Kosar write,
The office would have two core functions. First, it would perform cost-benefit analyses of agencies’ significant rules, which number around a hundred per year, in order to provide a disinterested check on agencies’ self-interested math. These CRO analyses would coincide with the prospective estimates that agencies themselves perform. This would create a legislative counterweight to the rule-review function of the Office of Information and Regulatory Affairs — which is nested within the OMB and thus the Executive Office of the President, and is therefore unable to provide a credibly neutral review process that goes beyond concerns internal to the executive branch.
The CRO’s assessment of a proposed regulation, like CBO’s bill scores, should be posted online and delivered to the committee of jurisdiction. Doing these things would increase the political salience of agency rulemaking, thereby fostering congressional oversight and encouraging policy entrepreneurs in the legislature to take up the subject. A CRO cost-benefit analysis should also be automatically submitted as public comment to the rule, which would oblige an agency response and possibly a recalibration of the rule.
Second, but perhaps just as promising, would be to have CRO perform periodic retrospective analyses informed by real data rather than forward-looking estimates. Agencies sometimes perform “look-back” assessments, but they are modest in number (certainly compared to the massive corpus of standing regulation) and produce only nominal changes. This is unsurprising, since each agency is passing judgment on its own work. CRO reports would regularly goad Congress to examine how the rules produced by existing laws are performing, such that they could work to revise those statutes that have yielded problematic results.
1. Take the analogy with the Congressional Budget Office. People love the CBO, but its practical impact has been questionable. Since 1975, the Congressional budget process has become worse, not better. Congress has become more evasive of accountability, not less so.
2. The proposed CRO is a solution if the problem is that Congress lacks information about bad regulatory policy. But is that really the problem? The problem is that, as with the budget, there is not much collective will in Congress to set policy.
I think that we have the state of affairs that we do because politicians like it. That means either that the regulators are getting away with something without the public realizing it or the public is basically complacent about regulators running amok. I am afraid that it is the latter.
Would a CRO make the public less complacent? Well, CBO has not made the public any less complacent about the unfunded liabilities of Social Security and Medicare. Instead, the CBO’s main impact has been to increase policy makers’ hubris about the ability of deficit spending to create jobs.
In a better world, what are called “regulations” would be called “laws,” and every single last one of them would require Congressional votes. In an even better world, politicians in Washington would look at all the things that agencies are attempting to regulate and say, “Gee, we have no business doing that. We are not properly informed. We should only regulate in areas where we have a good set of information on which to base regulation.”
I don’t know how to get to a better world. Look, I love checks and balances in theory. And I don’t mean to discourage creative ideas for addressing what I agree is a serious problem. But I am afraid that I must assign a low probability to a CRO moving us in the right direction.