TCS Daily

Regulation Delegation

By Radley Balko - August 7, 2003 12:00 AM

Recently, a few principled members of Congress introduced what they called the Congressional Responsibility Act of 2003. The bill's aim? To rein in the regulatory state by requiring Congress to vote on every regulation issued by executive agencies. Given that about 4,500 new regulations are issued each year, and that on average last year, there were about 300 new regulations issued each business day, the bill would significantly add to each congressional office's workload, it would dramatically limit the power of executive agencies to issue new rules, and it would restore lawmaking power to Congress, where the Constitution says it ought to reside.


Of course, these are the very reasons the bill hasn't a popsicle's chance on Texas asphalt of passing.


The problem with congressional delegation of regulatory duties is that it enables executive agencies to pass onerous new rules that often go undetected by the major medial outlets, and thus escape the scrutiny of public debate.


A great example is a recent FCC "interpretation" of existing regulations that bans solicitous faxes, just issued at the end of July, and set to take effect on August 25 of this year.


These new rules supplement the wildly popular federal "do not call" registry just passed by Congress. Because of the hype and attention the registry got, the fax rules slipped by under the radar. That's unfortunate. Because if they take effect in three weeks as scheduled, they'll put a tremendous burden on businesses, non-profits, and trade groups that rely on fax machines for day-to-day operations.


The new rules would require every business or individual to obtain written permission from any business or individual before sending an unsolicited fax. That's different than the "do not call" registry in a couple of ways.


First, the onus is shifted from the individual who wishes not to be bothered with solicitations to the business that must now ask permission from every potential client before sending a fax requesting that ... they become a client.


What's worse is that the new regulations eliminate the "existing business relationship" exemption previously given to unsolicited faxers. That means that businesses, interest groups, non-profits and advocacy groups who have spent years putting fax lists together must now go back to each fax number and get written permission before sending more faxes after August 25th.


The signatures also apply not to whole businesses but to each individual machine, meaning the president of an environmental advocacy group couldn't give carte blanche for every machine in his organization to, say, receive faxes from Greenpeace. Greenpeace would need to obtain signatures from each office where a fax machine in that organization resides.


Penalties for noncompliance with these new regulations are stiff -- up to $11,000 per fax.


What's particularly troubling about these new regulations is the way they were instituted. According to the American Society of Association Executives, last September, the FCC issued a notice for public comment on proposed changes to the 1991 Telephone Consumer Protection Act. These changes, however, were largely reflective of the "do not call" registry that most in the industry expected. It wasn't until the changes were published in the Federal Registry this past July that the FCC included the language on unsolicited faxes. That gives affected businesses (which is virtually every business) just 30 days to lobby for repeal before the regulations carry the force of law.


Consumer advocates will of course argue that fax recipients are in many ways more burdened by unwanted faxes than consumers who get unsolicited telemarketing phone calls, or spam. And businesses will inevitably counter that "blast faxing" yields results (or else it wouldn't be practiced), meaning that there are consumers out there who benefit from unsolicited faxes.


Whether or not the new regulations are sound, then, is open to debate. But that's just the point. There ought to be a debate. Giving the public 30 days to comment on new regulations covertly slid into the 75,000-page Federal Register doesn't qualify as "public debate."


When Congress delegates vast lawmaking powers to executive branch agencies charged with enforcing the law, it synchronizes two checks and balances that the framers intended to remain separate. Regulatory bureaucrats wield enormous power in Washington. The combination of an ever-expanding regulatory state and limited resources further enables them to actually make policy by picking and choosing which regulations they're going to enforce, and which businesses they want to make an example of by enforcing them.


Powerful bureaucrats at some regulatory agencies are often more sought after by lobbyists than congressmen, and with good reason. Congress can only make laws. But thanks to Congress' willingness to delegate much of that lawmaking power, a high-ranking bureaucrat can both make and enforce law.


Considering that, unlike a congressman, our high-ranking career bureaucrat isn't answerable to the electorate, perhaps its time we got concerned about congressional delegation of the legislative power.


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