The Fourth Branch of Government

Feb 4, 2013

A powerful, unelected, and often unaccountable fourth branch of government is driving much of the policy that impacts the way we run our businesses and lead our lives. Federal regulators are churning out about 4,000 regulations a year—including a rising number of massive, costly rules. Systemic overregulation breeds uncertainty, drives up costs, stifles hiring and investment, and threatens our competitive edge in a global economy.

A major indicator of overregulation is the rise in “economically significant” rules—those bearing a price tag of $100 million or more. In 2003, the number of economically significant rules was 127. That number has been steadily increasing since 2007. In 2012, a whopping 224 of these major regulations were in the pipeline.

There is also a troubling lack of transparency and public engagement. Federal law requires every president to release his regulatory plans twice a year so that individuals and businesses have a chance to plan for—or object to—regulations before they take effect.   

After skipping both the spring and fall deadlines in 2012, the administration quietly published its regulatory agenda just days before the end of the year. And it confirmed what we already suspected: A second term will bring a slew of costly new regulations, covering everything from power plant emissions to health care standards.

Once the regulations are out in the open, there isn’t always a chance for the public to offer input. The nonpartisan Government Accountability Office found that about 35% of major regulations are issued without a public comment period. In most of those cases, the regulators simply decided that there was “good cause” to issue the rule without public input. In too many other instances, public comment periods have been too short to digest lengthy and complex rules, analyze their impact, and offer thoughtful responses.  

What’s to be done? We need to reform the entire system to restore transparency and accountability and to ensure that the benefits of rules outweigh the costs. In the meantime, we’ll continue to work with the regulators to improve rules when we can and with Congress to reform or repeal bad regulations.

And if it comes to it, we’ll sue. In support of one of its members, the Noel Canning Corporation, the Chamber briefed, argued, and won a constitutional challenge last week to three recess appointments to the National Labor Relations Board.

The Chamber will continue to use every tool at its disposal to keep the fourth branch of government at bay—and to protect America’s job creators from the costs and uncertainty of a regulatory regime run amok.

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