118th Congress Should Confront Biden Administration On Overdue Regulatory Cost Benefit Reports

Not later than February 5, 2001, and on the first Monday in February of each year thereafter, the President, acting through the Director of the Office of Management and Budget, shall prepare and submit to the Congress an accounting statement and associated report containing an estimate of the total annual costs and benefits of Federal regulatory programs, including rules and paperwork—

(1) in the aggregate;

(2) by agency, agency program, and program component; and

(3) by major rule.

—Regulatory Right-to-Know Act of 1999

Why is it impossible to get timely reports from the federal bureaucracy on the costs and benefits of federal regulation, even when required by law?

An immediate cause is that no accountability exists for failing to adhere to the laws requiring such reports. The deeper cause is that progressive central planners believe government control of economy and society is inherently beneficial rather than lethal; so it would be contradictory for overseers to regard mere incremental regulation as somehow problematic. From the planner’s’ mindset, liberty stands in their way in pursuit of their all-knowing “modernization” and transformation of the Republic.

Detailed federal budgetary statistics tell you what the bipartisan juggernaut (over) spends, although amid smoke, mirrors and absent audits that obscure harsher realities.

But official reporting on costs and benefits of regulations—always abysmal—continues to slide under Joe Biden, who might well be regarded as the Edward Scissorhands of federal regulatory disclosure.

Much of these Biden escalations of the administrative state in the wake of Trump’s efforts to streamline were covered in the 2022 Ten Thousand Commandments.

Since then, alongside a 2022 roundup of some of Biden’s more recent 2022 regulatory track record, we inquired into the whereabouts of Biden’s tardy Fall 2022 edition of the twice yearly Unified Agenda of Federal Regulatory and Deregulatory Actions, which is still nowhere to be seen in 2023. This mandatory compilation is where agencies present their regulatory priorities, and its absence is not a good sign: in Spring 2012 under Biden’s former boss Barack Obama, the Office of Management and Budget (OMB) and Regulatory Information Service Center didn’t even bother issuing the Unified Agenda at all, and one hopes Biden’ isn’t taking a cue from Obama’s transgression.

That’s because there’s an even more important mandatory update on the regulatory enterprise that’s also Missing in Action. Herein, we’ll take a look at the annual (well, it used to be) Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act.

This report, required by the 1999 “Regulatory Right-to-Know Act” cited at the opening of this article, is where the White House Office of Management and Budget is directed to (but does not) estimate the aggregate cost of regulation, and inform the public about what it reckons to be the “net-benefits” or net costs of the overall enterprise as well as of its components.

Did you happen to note that “first Monday in February” directive in the bill text quoted above? The Draft versions alone of this report are consistently overdue; and yes, it happened under Trump, too, who issued Obama’s final and then-latest-ever overdue 2017 Draft edition of the Report to Congress, covering fiscal year 2016, or October 1, 2015 to September 30, 2016. Meanwhile, no Final 2016 Report covering fiscal year 2015 ever appeared, then or since. Trump then only partially caught up on Reports of his own in an unprecedented bulk-release of a 2018, 2019 and 2020 Draft Report to Congress compendium just before Christmas in 2019 (in a curious twist that made Trump’s fiscal 2019 draft the earlier ever).

That that’s about where things stopped. Trump issued the Final versions of the 2018-2020 combined reports in January 2021. But that only brings us current through fiscal year 2019; since then, there has been nothing. With Biden, as we enter 2023 and watch a 118th Congress with a GOP majority enter amid fraternal turmoil, we find ourselves three fiscal years behind on the OMB Report to Congress on official tallies of costs and benefits of regulations.

Time was, the Draft Report to Congress for a given fiscal year would appear in the subsequent calendar year with which it overlapped (for example, a normal 2022 fiscal year presentation would appear to us soon in a “2023 Draft Report.” As the list below indicates, while the aspirational February deadlines were met in 2003 and 2004, one tended to see the Draft report most frequently in March, and usually by April at the latest, with notable outliers during the Bush/Obama transition (the September 2008 and 2009 Draft reports were the latest ever up to that point). At the outset of the Right-to-Know Act project, even Final reports tended to appear within the calendar year indicated on their cover, or in the first half of the year after at worst. The list below shows the month (and day of the month if available) during which the Draft and Final) Report to Congress has appeared since 2002.

Appearance of Draft and Final Editions of the OMB Report to Congress on Regulations

• 2002 (FY 2001): March 28, 2002; December 22, 2002
• 2003 (FY 2002): February 3, 2003; September 2003
• 2004 (FY 2003): February 2004; December 2004
• 2005 (FY 2004): March 9, 2005; December 2005
• 2006 (FY 2005): April 2006; January 2007
• 2007 (FY 2006): March 9, 2007; June 2008
• 2008 (FY 2007): September 15, 2008; January 2009
• 2009 (FY 2008): September 21, 2009; January 27, 2010
• 2010 (FY 2009): April 13, 2010; July 2010
• 2011 (FY 2010): March 2011; June 2011
• 2012 (FY 2011): March 2012; April 2013
• 2013 (FY 2012): April 2013; May 2014
• 2014 (FY 2013): May 2014; June 15, 2015
• 2015 (FY 2014): October 16, 2015; March 10, 2016
• 2016 (FY 2015): December 23, 2016; MIA
• 2017 (FY 2016): February 23, 2018; December 9, 2019
• 2018 (FY 2017): December 23, 2019; January 2021
• 2019 (FY 2018): December 23, 2019; January 2021
• 2020 (FY 2019): December 23, 2019; January 2021
• 2021 (FY 2020): MIA; MIA
• 2022 (FY 2021): MIA; MIA
• 2023 (FY 2022): Draft Report due February 6, 2023

Concerned parties are supposed to be afforded a chance to comment on the Draft report before a Final report gets issued. But one can’t comment on what doesn’t exist, which is where things stand now.

In another development I just discovered in preparing this roundup, pre-2016 Draft reports have been scrubbed from the OMB website. Those need to be restored. I am able to note the Draft dates in the above llist solely because I’d taken similar inventory like this at odd times in years past. One cannot find the pre-2016 Draft reports nor glean their date of appearance anymore from OMB’s website, which is in keeping with the administration’s surreptitious removal of the “Deregulatory” designation for rules that Trump had put in place.

Surely it is not too much to ask that the public and Congress should get more timely reports on aggregate costs, on costs of rules most recently issued, as well as on the regulatory priorities and planning depicted in Unified Agenda. It is important for Congress to conduct hearings into what is going on, and for the public to have this information despite such gaps as the omission of independent agency rule costs and assessments of guidance documents now on the ascendancy in Biden’s agenda. This deterioration is not entirely Joe Biden’s doing, but it does advance his agenda, and is indicative of inherent unworkability of the administrative state model of governance. Even the last Information Collection Budget of the United States Government covering paperwork burdens is dated 2018 (covering 2017); and it did not appear until December 2020 under Trump.

The lack of clarity on the scope of regulatory costs and their effects on jobs has in the past been a factor driving the call for regulatory liberalization in Congress and in the executive branch, and could be again. The aforementioned reports are among the only windows into the regulatory state we have, and they are gravely neglected even as the federal government has expanded massively.

Policymakers wouldn’t dream of doing away with the fiscal budget; it is necessary to track spending. Yet non-transparency and unaccountability for regulatory costs are the norm. We need straight answers. It’s not as if complete pictures were ever presented anyway; net-benefit claims are always made on the basis of only a handful of rules that happen to have monetized both costs and benefits out of thousands of rules agencies finalize each year. The reports need improvement, not abandonment. As it stands, Congress does not get information on a reliable or thorough enough basis for so-called cost-benefit analysis to govern anything.

Speaking of Trump, he promised to reduce the flow of new rules and to roll back rules on the books. The next edition of the Report to Congress, if thorough, presumably will capture at least some addional this aspect of Trump era and tell an interesting tale (even that of how hard it is even for a reform-minded president to streamline).

Speaking of thoroughness, the lack of transparency is still worse than noted so far; the required aggregate estimate of overall regulatory costs was abandoned years ago. It was replaced with a mere 10-year lookback, that itself vanished in the Trump 2018-20 composite edition.

Sweeping net-benefit claims are grotesque given these realities, yet the dutiful parroting of them is longstanding. In a sense the annual Reports to Congress obscure even more than they reveal about the scope of the regulatory state, but they are all we have and they provide pointers for the observant about what is being disregarded. We need the regulatory reports to diagram both what we know—and what we don’t know—as the basis for future regulatory reforms and streamlining.

Until some movement is seen here, the only thing the most transparent administration in history is being transparent about is its unqualified disregard for the regulatory burden. The 118^th Congress should push hard to get the overdue Report to Congress, Unified Agenda, and Information Collection Budget released ASAP in the New Year.