A new proposal to bring transparency to the executive branch could further erode former President Barack Obama’s regulatory legacy.
Sen. Ron Johnson, the Wisconsin Republican who chairs the Homeland Security and Governmental Affairs Committee, wants to require federal agencies to publish regulatory guidance online in an accessible place. The guidance refers to the bureaucratic commentary that clarifies national regulations.
As a stand-alone measure, his legislation could help individuals and institutions of all stripes navigate the “tens of thousands” of documents that shape government policy. But the information could also give lawmakers a new opening to reverse provisions that they dislike.
“You [can’t] find where the guidances were, and there was no requirement to post them in any organized fashion or necessarily to post them at all,” Johnson told the Washington Examiner.
That will change if Johnson’s Guidance Out Of Darkness bill passes Congress and receives a presidential signature. The bill would give agencies 60 days to post all the guidance issued from the previous 10 years in a single location on their websites. Any changes to the guidance would be documented; readers could see the old documents and know when the new guidance emerged.
“That's really part of the problem. Are you really a nation of laws when you have so many laws, so many rules, so many regulations, so many guidances that people don't have a clue?” Johnson said. “And they're really enforced at the discretion of agencies and law enforcement?”
Johnson says it’s a pertinent question, given how something that ought to be as anodyne as regulatory guidance can change national policy. In 2016, the Department of Housing and Urban Development used a guidance memo to announce that it is discriminatory for landlords to deny a rental application because the prospective tenant has a criminal record. A letter from the Department of Education brought sweeping changes to how universities around the country investigate campus sexual assault allegations. It was one of many changes, as the department issued new guidance “at a rate of more than one document per work day,” according to a Senate Republican report.
“What these agencies are trying to do is, rather than do actual rule-making, where you have to go through the Administrative Procedure Act ... it's a whole lot easier to issue a guidance that in effect is new regulation, new rule,” Johnson said.
The Government Accountability Office has agreed, in at least one case. In September, GAO officials announced that a joint guidance memo pertaining to lending rules amounted to a new rule, but one that hadn’t been developed through the proper regulatory process established by the Administrative Procedure Act.
And that’s where Johnson’s bill takes on additional significance as an opportunity to roll back Obama-era policies. Federal law requires agencies to notify Congress of new regulations before they take effect. Under the Congressional Review Act, lawmakers have 60 legislative days to vote to block the rule, and they can't be filibustered in that timeframe. Thus, if Johnson’s transparency bill becomes law, congressional Republicans could search the newly-published guidance for policies that amount to new regulations and overturn them.
“It would open all kinds of mischievous types of guidance under the Obama administration to outright repeal,” Johnson said. “All the Trump administration would have to do is finally issue the report on a guidance, and the clock would start ticking, so we have total ball control on this.”
Democrats might balk at such a bill, given the possibility of policy defeats in the short-term. But Johnson notes that President Trump’s administration already has the power to reverse those guidance memos without congressional help.
“This really is something for the future,” he said. “I think this is something that's really going to be required for Democratic administrations. But my guess is Republican administrations — Democrats might have the same exact issue [with them], potentially. So, hopefully, this could have some bipartisan support.”