Tag Archives: OMB

How Complete Are Federal Agencies’ Regulatory Analyses?

A report released yesterday by the Government Accountability Office will likely get spun to imply that federal agencies are doing a pretty good job of assessing the benefits and costs of their proposed regulations. The subtitle of the report reads in part, “Agencies Included Key Elements of Cost-Benefit Analysis…” Unfortunately, agency analyses of regulations are less complete than this subtitle suggests.

The GAO report defined four major elements of regulatory analysis: discussion of the need for the regulatory action, analysis of alternatives, and assessment of the benefits and costs of the regulation. These crucial features have been required in executive orders on regulatory analysis and OMB guidance for decades. For the largest regulations with economic effects exceeding $100 million annually (“economically significant” regulations), GAO found that agencies always included a statement of the regulation’s purpose, discussed alternatives 81 percent of the time, always discussed benefits and costs, provided a monetized estimate of costs 97 percent of the time, and provided a monetized estimate of benefits 76 percent of the time.

A deeper dive into the report, however, reveals that GAO did not evaluate the quality of any of these aspects of agencies’ analysis. Page 4 of the report notes, “[O]ur analysis was not designed to evaluate the quality of the cost-benefit analysis in the rules. The presence of all key elements does not provide information regarding the quality of the analysis, nor does the absence of a key element necessarily imply a deficiency in a cost-benefit analysis.”

For example, GAO checked to see if the agency include a statement of the purpose of the regulation, but it apparently accepted a statement that the regulation is required by law as a sufficient statement of purpose (p. 22). Citing a statute is not the same thing as articulating a goal or identifying the root cause of the problem an agency seeks to solve.

Similarly, an agency can provide a monetary estimate of some benefits or costs without necessarily addressing all major benefits or costs the regulation is likely to create. GAO notes that it did not ascertain whether agencies addressed all relevant benefits or costs (p. 23).

For an assessment of the quality of agencies’ regulatory analysis, check out the Mercatus Center’s Regulatory Report Card. The Report Card evaluation method explicitly assesses the quality of the agency’s analysis, rather than just checking to see if the agency discussed the topics. For example, to assess how well the agency analyzed the problem it is trying to solve, the evaluators ask five questions:

1. Does the analysis identify a market failure or other systemic problem?

2. Does the analysis outline a coherent and testable theory that explains why the problem is systemic rather than anecdotal?

3. Does the analysis present credible empirical support for the theory?

4. Does the analysis adequately address the baseline — that is, what the state of the world is likely to be in the absence of federal intervention not just now but in the future?

5. Does the analysis adequately assess uncertainty about the existence or size of the problem?

These questions are intended to ascertain whether the agency identified a real, significant problem and identified its likely cause. On a scoring scale ranging from 0 points (no relevant content) to 5 points (substantial analysis), economically significant regulations proposed between 2008 and 2012 scored an average of just 2.2 points for their analysis of the systemic problem. This score indicates that many regulations are accompanied by very little evidence-based analysis of the underlying problem the regulation is supposed to solve. Scores for assessment of alternatives, benefits, and costs are only slightly better, which suggests that these aspects of the analysis are often seriously incomplete.

These results are consistent with the findings of other scholars who have evaluated the quality of agency Regulatory Impact Analyses during the past several decades. (Check pp. 7-10 of this paper for citations.)

The Report Card results are also consistent with the findings in the GAO report. GAO assessed whether agencies are turning in their assigned homework; the Report Card assesses how well they did the work.

The GAO report contains a lot of useful information, and the authors are forthright about its limitations. GAO combed through 203 final regulations to figure out what parts of the analysis the agencies did and did not do — an impressive accomplishment by any measure!

I’m more concerned that some participants in the political debate over regulatory reform will claim that the report shows regulatory agencies are doing a great job of analysis, and no reforms to improve the quality of analysis are needed. The Regulatory Report Card results clearly demonstrate otherwise.

When Regulatory Agencies Ignore Comments from the Public

A few days ago, the Department of Energy (DOE) finalized a rule setting energy efficiency standards for metal halide lamp fixtures. Last October I wrote a public interest comment to the DOE to point out several problems with the agency’s preliminary economic analysis for the rule. As part of the Administrative Procedure Act, agencies are required to solicit, and respond to, comments from the public before finalizing regulations. Unfortunately, the DOE failed to even acknowledge many of the points I made in my submission.

As evidence, here are some of the main takeaways from my comment:

1)      The DOE claims consumers and businesses are acting in an irrational manner when purchasing metal halide lamp fixtures because they forgo modest long term energy savings in order to pay a low upfront price for lamp fixtures. Yet the agency offers no convincing evidence to support the theory that consumers act irrationally when purchasing metal halide lamp fixtures. At the same time, roughly 70% of the estimated benefits of the rule are the supposed benefits bestowed upon the public when products people would purchase otherwise are removed from the market.

2)      The DOE is currently adding together costs and benefits that occur in the future but that are discounted to present value using different discount rates. It makes no sense to add together costs and benefits calculated in this manner.

3)      The DOE is using a new value of the Social Cost of Carbon (SCC), a way to measure benefits from reducing carbon dioxide emissions, that may be of questionable validity since the analysts who arrived at the estimate ignored recent scientific evidence. Additionally, the DOE is using the new SCC in its analysis before the public has even had a chance to comment on the validity of the new number.

4)      In its analysis, the DOE is including benefits to foreign countries as a result of reduced carbon dioxide emissions, even while the costs of the metal halide lamp fixture regulation will be borne largely by Americans.

Regarding #1 above, the DOE provided no direct response to my comment in the preamble to its final rule. This even though #1 puts in doubt roughly 70% of the estimated benefits of the rule.

The DOE also failed to respond to #2 above, even though I cited as support a very recent and relevant paper on the subject that appeared in a reputable journal and was coauthored by Nobel laureate Kenneth Arrow.

Regarding #3 and #4, the DOE had this to say:

On November 26, 2013, the Office of Management and Budget (OMB) announced minor technical corrections to the 2013 SCC values and a new opportunity for public comment on the revised Technical Support Document underlying the SCC estimates. Comments regarding the underlying science and potential precedential effect of the SCC estimates resulting from the interagency process should be directed to that process. See 78 FR 70586. Additionally, several current rulemakings also use the 2013 SCC values and the public is welcome to comment on the values as applied in those rulemakings just as the public was welcome to comment on the use and application of the 2010 SCC values in the many rules that were published using those values in the past three years.

In other words, the DOE is committed to continuing to use a value of the SCC that may be flawed since the public has the opportunity to complain to the Office of Management and Budget. At the same time, the DOE tells us we can comment on other regulations that use the new SCC value, so that should reassure anyone whose comment the DOE ignored related to this regulation!

All of this is especially troubling since the DOE is required by statute to ensure its energy efficiency rules are “economically justifiable.” It is hard to argue this rule is economically justifiable when roughly 94% of the rule’s benefits are in doubt. This is the proportion of benefits justified on the basis of consumer irrationality and on the basis that Americans should be paying for benefits that will be captured by citizens in other countries. Without these benefits, the rule fails a benefit-cost test according to the DOE’s own estimates.

The requirement that agencies respond to public comments is designed to ensure a level of democratic accountability from regulators, who are tasked with serving the American public. A vast amount of power is vested in these agencies, who are largely insulated from Congressional oversight. As evidence, Congress has only used its Congressional Review Act authority to overrule major regulations once in its history. If agencies ignore the public, and face little oversight from Congress, what faith can we have that regulators will be held accountable for any harms that inevitably arise from poorly designed regulations?

The Use of Science in Public Policy

For the budding social scientists out there who hope that their research will someday positively affect public policy, my colleague Jerry Ellig recently pointed out a 2012 publication from the National Research Council called “Using Science as Evidence in Public Policy.” (It takes a few clicks to download, but you can get it for free).

From the intro, the council’s goal was:

[T]o review the knowledge utilization and other relevant literature to assess what is known about how social science knowledge is used in policy making . . . [and] to develop a framework for further research that can improve the use of social science knowledge in policy making.

The authors conclude that, while “knowledge from all the sciences is relevant to policy choices,” it is difficult to explain exactly how that knowledge is used in the public policy sphere.  They go on to develop a framework for research on how science is used.  The entire report is interesting, especially if you care about using science as evidence in public policy, and doubly so if you are a Ph.D. student or recently minted Ph.D. I particularly liked the stark recognition of the fact that political actors will consider their own agendas (i.e., re-election) and values (i.e., the values most likely to help in a re-election bid) regardless of scientific evidence.  That’s not a hopeless statement, though – there’s still room for science to influence policy, but, as public choice scholars have pointed out for decades, the government is run by people who will, on average, rationally act in their own self-interest.  Here are another couple of lines to that point:

Holding to a sharp, a priori distinction between science and politics is nonsense if the goal is to develop an understanding of the use of science in public policy. Policy making, far from being a sphere in which science can be neatly separated from politics, is a sphere in which they necessarily come together… Our position is that the use of [scientific] evidence or adoption of that [evidence-based] policy cannot be studied without also considering politics and values.

One thing in particular stands out to anyone who has worked on the economic analysis of regulations.  The introduction to this report includes this summary of science’s role in policy:

Science has five tasks related to policy:

(1) identify problems, such as endangered species, obesity, unemployment, and vulnerability to natural disasters or terrorist acts;

(2) measure their magnitude and seriousness;

(3) review alternative policy interventions;

(4) systematically assess the likely consequences of particular policy actions—intended and unintended, desired and unwanted; and

(5) evaluate what, in fact, results from policy.

This sounds almost exactly like the process of performing an economic analysis of a regulation, at least when it’s done well (if you want to know well agencies actually perform regulatory analysis, read this, and for how well they actually use the analysis in decision-making,  read this).  Executive Order 12866, issued by President Bill Clinton in 1993, instructs federal executive agencies on the role of analysis in creating regulations, including each of the following instructions.  Below I’ve slightly rearranged some excerpts and slightly paraphrased other parts from Executive Order 12866, and I have added in the bold numbers to map these instructions back to summary of science’s role quoted above. (For the admin law wonks, I’ve noted the exact section and paragraph of the Executive Order that each element is contained in.):

(1) Each agency shall identify the problem that it intends to address (including, where applicable, the failures of private markets or public institutions that warrant new agency action). [Section 1(b)(1)]

(2) Each agency shall assess the significance of that problem. [Section 1(b)(1)]

(3) Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. Each agency shall identify and assess alternative forms of regulation. [Section 1(b)(3) and Section 1(b)(8)]

(4) When an agency determines that a regulation is the best available method of achieving the regulatory objective, it shall design its regulations in the most cost-effective manner to achieve the regulatory objective. In doing so, each agency shall consider incentives for innovation, consistency, predictability, the costs of enforcement and compliance (to the government, regulated entities, and the public), flexibility, distributive impacts, and equity. [Section 1(b)(5)]

(5) Each agency shall periodically review its existing significant regulations to determine whether any such regulations should be modified or eliminated so as to make the agency’s regulatory program more effective in achieving the regulatory objectives, less burdensome, or in greater alignment with the President’s priorities and the principles set forth in this Executive order. [Section 5(a)]

OMB’s Circular A-4—the instruction guide for government economists tasked with analyzing regulatory impacts—similarly directs economists to include three basic elements in their regulatory analyses (again, the bold numbers are mine to help map these elements back to the summary of science’s role):

(1 & 2) a statement of the need for the proposed action,

(3) an examination of alternative approaches, and

(4) an evaluation of the benefits and costs—quantitative and qualitative—of the proposed action and the main alternatives identified by the analysis.

The statement of the need for proposed action is equivalent to the first (identifying problems) and second tasks (measuring their magnitude and seriousness) from NRC report.  The examination of alternative approaches and evaluation of the benefits and costs of the possible alternatives are equivalent to tasks 3 (review alternative policy interventions) and 4 (assess the likely consequences). 

It’s also noteworthy that the NRC points out the importance of measuring the magnitude and seriousness of problems.  A lot of public time and money gets spent trying to fix problems that are not widespread or systemic.  There may be better ways to use those resources.  Evaluating the seriousness of problems allows a prioritization of limited resources.

Finally, I want to point out how this parallels a project here at Mercatus.  Not coincidentally, the statement of science’s role in policy reads like the grading criteria of the Mercatus Regulatory Report Card, which are:

1. Systemic Problem: How well does the analysis identify and demonstrate the existence of a market failure or other systemic problem the regulation is supposed to solve?
2. Alternatives: How well does the analysis assess the effectiveness of alternative approaches?
3. Benefits (or other Outcomes): How well does the analysis identify the benefits or other desired outcomes and demonstrate that the regulation will achieve them?
4. Costs: How well does the analysis assess costs?
5. Use of Analysis: Does the proposed rule or the RIA present evidence that the agency used the Regulatory Impact Analysis in any decisions?
6. Cognizance of Net Benefits: Did the agency maximize net benefits or explain why it chose another alternative?

The big difference is that the Report Card contains elements that emphasize measuring whether the analysis is actually used – bringing us back to the original goal of the research council – to determine “how social science knowledge is used in policy making.”

Does Anyone Know the Net Benefits of Regulation?

In early August, I was invited to testify before the Senate Judiciary subcommittee on Oversight, Federal Rights and Agency Action, which is chaired by Sen. Richard Blumenthal (D-Conn.).  The topic of the panel was the amount of time it takes to finalize a regulation.  Specifically, some were concerned that new regulations were being deliberately or needlessly held up in the regulatory process, and as a result, the realization of the benefits of those regulations was delayed (hence the dramatic title of the panel: “Justice Delayed: The Human Cost of Regulatory Paralysis.”)

In my testimony, I took the position that economic and scientific analysis of regulations is important.  Careful consideration of regulatory options can help minimize the costs and unintended consequences that regulations necessarily incur. If additional time can improve regulations—meaning both improving individual regulations’ quality and having the optimal quantity—then additional time should be taken.  My logic behind taking this position was buttressed by three main points:

  1. The accumulation of regulations stifles innovation and entrepreneurship and reduces efficiency. This slows economic growth, and over time, the decreased economic growth attributable to regulatory accumulation has significantly reduced real household income.
  2. The unintended consequences of regulations are particularly detrimental to low-income households— resulting in costs to precisely the same group that has the fewest resources to deal with them.
  3. The quality of regulations matters. The incentive structure of regulatory agencies, coupled with occasional pressure from external forces such as Congress, can cause regulations to favor particular stakeholder groups or to create regulations for which the costs exceed the benefits. In some cases, because of statutory deadlines and other pressures, agencies may rush regulations through the crafting process. That can lead to poor execution: rushed regulations are, on average, more poorly considered, which can lead to greater costs and unintended consequences. Even worse, the regulation’s intended benefits may not be achieved despite incurring very real human costs.

At the same time, I told the members of the subcommittee that if “political shenanigans” are the reason some rules take a long time to finalize, then they should use their bully pulpits to draw attention to such actions.  The influence of politics on regulation and the rulemaking process is an unfortunate reality, but not one that should be accepted.

I actually left that panel with some small amount of hope that, going forward, there might be room for an honest discussion about regulatory reform.  It seemed to me that no one in the room was happy with the current regulatory process – a good starting point if you want real change.  Chairman Blumenthal seemed to feel the same way, stating in his closing remarks that he saw plenty of common ground.  I sent a follow-up letter to Chairman Blumenthal stating as much. I wrote to the Chairman in August:

I share your guarded optimism that there may exist substantial agreement that the regulatory process needs to be improved. My research indicates that any changes to regulatory process should include provisions for improved analysis because better analysis can lead to better outcomes. Similarly, poor analysis can lead to rules that cost more human lives than they needed to in order to accomplish their goals.

A recent op-ed penned by Sen. Blumenthal in The Hill shows me that at least one person is still thinking about the topic of that hearing.  The final sentence of his op-ed said that “we should work together to make rule-making better, more responsive and even more effective at protecting Americans.” I agree. But I disagree with the idea that we know that, as the Senator wrote, “by any metric, these rules are worth [their cost].”  The op-ed goes on to say:

The latest report from the Office of Information and Regulatory Affairs shows federal regulations promulgated between 2002 and 2012 produced up to $800 billion in benefits, with just $84 billion in costs.

Sen. Blumenthal’s op-ed would make sense if his facts were correct.  However, the report to Congress from OIRA that his op-ed referred to actually estimates the costs and benefits of only a handful of regulations.  It’s simple enough to open that report and quote the very first bullet point in the executive summary, which reads:

The estimated annual benefits of major Federal regulations reviewed by OMB from October 1, 2002, to September 30, 2012, for which agencies estimated and monetized both benefits and costs, are in the aggregate between $193 billion and $800 billion, while the estimated annual costs are in the aggregate between $57 billion and $84 billion. These ranges are reported in 2001 dollars and reflect uncertainty in the benefits and costs of each rule at the time that it was evaluated.

But you have to actually dig a little farther into the report to realize that this characterization of the costs and benefits of regulations represents only the view of agency economists (think about their incentive for a moment – they work for the regulatory agencies) and for only 115 regulations out of 37,786 created from October 1, 2002, to September 30, 2012.  As the report that Sen. Blumenthal refers to actually says:

The estimates are therefore not a complete accounting of all the benefits and costs of all regulations issued by the Federal Government during this period.

Furthermore, as an economist who used to work in a regulatory agency and produce these economic analyses of regulations, I find it heartening that the OMB report emphasizes that the estimates it relies on to produce the report are “neither precise nor complete.”  Here’s another point of emphasis from the OMB report:

Individual regulatory impact analyses vary in rigor and may rely on different assumptions, including baseline scenarios, methods, and data. To take just one example, all agencies draw on the existing economic literature for valuation of reductions in mortality and morbidity, but the technical literature has not converged on uniform figures, and consistent with the lack of uniformity in that literature, such valuations vary somewhat (though not dramatically) across agencies. Summing across estimates involves the aggregation of analytical results that are not strictly comparable.

I don’t doubt Sen. Blumenthal’s sincerity in believing that the net benefits of regulation are reflected in the first bullet point of the OMB Report to Congress.  But this shows one of the problems facing regulatory reform today: People on both sides of the debate continue to believe that they know the facts, but in reality we know a lot less about the net effects of regulation than we often pretend to know.  Only recently have economists even begun to understand the drag that regulatory accumulation has on economic growth, and that says nothing about what benefits regulation create in exchange.

All members of Congress need to understand the limitations of our knowledge of the total effects of regulation.  We tend to rely on prospective analyses – analyses that state the costs and benefits of a regulation before they come to fruition.  What we need are more retrospective analyses, with which we can learn what has really worked and what hasn’t, and more comparative studies – studies that have control and experiment groups and see if regulations affect those groups differently.  In the meantime, the best we can do is try to ensure that the people engaged in creating new regulations follow a path of basic problem-solving: First, identify whether there is a problem that actually needs to be solved.  Second, examine several alternative ways of addressing that problem.  Then consider what the costs and benefits of the various alternatives are before choosing one. 

Why Regulations Fail

Last week, David Fahrenthold wrote a great article in the Washington Post, in which he described the sheer absurdity of a USDA regulation mandating a small town magician to develop a disaster evacuation plan for his rabbit (the rabbit was an indispensible part of trick that also involved a hat). The article provides a good example of the federal regulatory process’ flaws that can derail even the best-intentioned regulations. I list a few of these flaws below.

  1. Bad regulations often start with bad congressional statutes. The Animal Welfare Act of 1966, the statute authorizing the regulation, was meant to prevent medical labs from using lost pets for experiments. Over time, the statute expanded to include all warm-blooded animals (pet lizards apparently did not merit congressional protection) and to apply to zoos and circuses in addition to labs (pet stores, dog and cat shows, and several other venues for exhibiting animals were exempt).The statute’s spotty coverage resulted from political bargaining rather than the general public interest in animal welfare. The USDA rule makes the statute’s arbitrariness immediately apparent. Why would a disaster plan benefit circus animals but not the animals in pet stores or farms? (A colleague of mine jokingly suggested eating the rabbit as part of an evacuation plan, since rabbits raised for meat are exempt from the regulation’s requirements).
  2. Regulations face little oversight. When media reported on the regulation’s absurdity, the USDA Secretary Tom Vilsack ordered the regulation to be reviewed. It seems that even the agency’s head was caught off guard by the actions of his agency’s regulators. Beyond internal supervision, only a fraction of regulations face external oversight. Of over 2600 regulations issued in 2012, less than 200 were subject to the OMB review (data from GAO and OMB). Interestingly, the OMB did review the USDA rule but offered only minor revisions.
  3. Agencies often fail to examine the need for regulation. In typical Washington fashion, the agency decided to regulate in response to a crisis – Hurricane Katrina in this case. In fact, the USDA offered little more than Katrina’s example to justify the regulation. It offered little evidence that the lack of disaster evacuation plans was a widespread problem that required the federal government to step in. In this, the USDA is not alone. According to the Mercatus Center’s Regulatory Report Card, which evaluates agencies’ economic analysis, few agencies offer substantial evidence justifying the need for promulgated regulations.
  4. Agencies often fail to examine the regulation’s effectiveness. The USDA’s plan to save animals in case of a disaster was to require owners to draw up an evacuation plan. It offered little evidence that having a plan would in fact save the animals. For example, the magician’s evacuation plan called for shoving the rabbit into a plastic bag and getting out. In the USDA’s view, the magician would not have thought of doing the same had he not drawn up the evacuation plan beforehand.
  5. The public has little influence in the process. By law, agencies are required to ask the public for input on proposed regulations. Yet, small businesses and individual consumers rarely have time or resources to keep an eye on federal agencies. In general, organized interests dominate the commenting process. The article describes the magician’s surprise to learn that he was required to have a license and a disaster evacuation plan his rabbit, even though the regulation was in the works for a few years and was open for public comments for several months. Most small businesses, much like this magician, learn about regulations only after they have passed.
  6. Public comments are generally ignored. Most public comments that the USDA received argued against the rule. They pointed out that it would impose substantial costs on smaller businesses. The agency dismissed the comments with little justification. This case is not unique. Research indicates that agencies rarely make substantial changes to regulations in response to public comments.

Spending Projections and Spending Reality

The President’s budget was released this week. Since 2009, spending as a share of the economy has been at an all-time, post-WWII high. As a share of the economy, spending averaged 20.8 percent from 1970 to 2010. In FY2011, it is projected to be 25.3 percent (or 22 percent above average). According to the CBO’s alternative fiscal scenario, it will reach 35.2 percent by 2035.

Not to worry, though, the White House Office of Management and Budget projects that—starting around 2012—things will turn around. Through a combination of rapid economic expansion (they assume nominal GDP will grow at an average annual rate of 5.6 from 2012 to 2016) and “responsible” budget cuts, they plan to get spending as a share of the economy down to around 22.5 percent by 2013. (They do not foresee spending ever returning to its historical average).

What are the odds they will succeed?

As one data point, the curious may want to see what the OMB was projecting two years ago when the spending spree began. My colleague, Jakina Debnam, and I do just that with this chart. Two years ago, they were promising that the spending increase would be “timely, targeted, and temporary.” As such, they projected that in 2011, spending as a share of the economy would already have fallen to 23.4 percent.

This is nearly 2 percentage points lower than they now are willing to countenance.

The CAP Act: A Glass Half-Full?

Aaron Merrill is “very pessimistic” about the new “CAP Act” proposal. I’m mildly pessimistic.

First, a few things that I think are good signs:

  1. Unlike PAYGO, the law isn’t just about making sure spending is paid for. It is an attempt to actually limit spending. Also unlike PAYGO, the law targets existing, not just new programs.
  2. In the event that Congress can’t agree on where to cut, the act would trigger automatic, evenly distributed cuts across all categories of spending. This is good. Across-the-board cuts are sufficiently unpleasant to make legislators want to prioritize. But since the cuts will be evenly-distributed, Congress won’t have a strong incentive to scuttle the bill altogether. The last time something like this was tried (the Gramm-Rudman-Hollings (GRH) Act of 1985), a number of programs were exempted from the automatic cuts. These included: Social Security (which was actually in surplus at the time), veterans’ pensions, the earned income tax credit, the president’s compensation, the postal service, welfare payments, and (for the most part) Medicare. This meant that the cuts had to be concentrated on a relatively few programs. David Primo writes (p. 111) that: “At one point, GRH authorized the [office of management and budget (OMB)] to make cuts of over 30 percent to both defense and unprotected discretionary spending.” Faced with this option, Congress found it much more palatable to simply repeal GRH.
  3. It is smart to give OMB—an executive branch agency—the authority to execute the automatic cuts. The goal here is to tie legislators’ hands so that they don’t have to police themselves. GRH initially gave Congress’s Government Accountability Office the authority to execute the automatic cuts. But when a court struck that provision down, the fallback provision was for a joint committee of Congress to execute the cuts. As Primo explained (p. 111), this meant that Congress had “to pass legislation each time it wanted to trigger a sequester.” You can imagine how eager they were to do that. Ultimately, GRH was amended so that the OMB would make the cuts. And to me, that makes sense.   
  4. The CAP Act would permit legislators to avoid the cuts if they can muster a supermajority in both houses. This, too, is a step in the right direction, though I share Aaron’s concern that it is not enough. Normal legislation, of course, can always be repealed with 60 votes in the Senate and a simple majority in the House, plus the President’s signature. By requiring a supermajority in both chambers, this raises the hurdle a bit. But I would be much happier if it were a higher bar (90% of lawmakers?). Of course, even a 90% hurdle could be overcome by repealing the law. In the end, a Constitutional Amendment may be the only way to really bind.    
  5. The cuts are gradual which means that they are more likely to happen. As the GRH experience shows, spending reduction plans that call for cuts that are too dramatic often end up being repealed or ignored.

But it isn’t all sunlight and rainbows. I still have some concerns:

  1. As Aaron points out, the bill is enforced via a “budgetary point of order.” As my friend Jim Musser explained to me, the House Rules Committee can and often does waive all points of order when they consider certain pieces of legislation. In this case, this evidently means that a simple majority of a committee can basically suspend this rule whenever it so chooses.
  2. The reductions are not enough to solve the problem. They want to get spending down to its historical average, but I’d point out that the historical spending average is greater than the historical revenue average and this is a formula of unsustainable debt accumulation.
  3. The reduction in the growth of spending doesn’t start until 2013 and even then, the glide path is so shallow that after 10 years, the national debt will still be well above 100 percent of GDP (assuming revenue remains at its 10 year average).
  4. It is possible that the CAP Act could—perversely—act as an excuse to spend up to the limit. 20.6% may have been the norm for the last 40 years, but I don’t think it is the ideal by any stretch.

CAP Act: Baby Steps Towards Fiscal Responsibility – Tentative and Toothless

This afternoon Senators Bob Corker (R-Tenn.) and Claire McCaskill (D-Mo) will introduce legislation to “force Congress to dramatically cut spending over 10 years”. From the Senator’s website:

At a time when many families have been forced to tighten their pocketbooks, Congress must also learn to do the same. This bill isn’t just about cutting back this year or next year; it’s about instilling permanent discipline to keep spending at a responsible level,” McCaskill said.

The Commitment to American Prosperity Act, the “CAP Act,” would:

(1) Put in place a 10-year glide path to cap all spending – discretionary and mandatory – to a declining percentage of the country’s gross domestic product, eventually bringing spending down from the current level, 24.7 percent of GDP, to the 40-year historical level of 20.6 percent, and

(2) If Congress fails to meet the annual cap, authorize the Office of Management and Budget to make evenly distributed, simultaneous cuts throughout the federal budget to bring spending down to the pre-determined level. Only a two-thirds vote in both houses of Congress could override the binding cap …

I’m very pessimistic about this, for many reasons. Procedurally, the Act only institutes a new budgetary point of order, which can be overridden with super-majority votes in both houses. That is, the Act doesn’t compel anyone to act fiscally responsibly unless they’re inclined to do so. If we had such restrained legislators, a cap wouldn’t be necessary to begin with. Currently the House can override budgetary points of order with a simple majority vote, so this is an improvement, but not one I expect to have serious results.

The technical aspects of the Cap Act are similarly merit-less. First, the baselines are all skewed; why should we accept 20.6% of GDP spending as the new ‘normal’? Historically, Federal receipts average right around 18% of GDP, so locking in 20% would still put us on a trajectory towards systemic deficits. Given that we’re starting from a baseline where Federal debt rapidly approaches 100% of GDP, this isn’t a responsible plan to reign in spending. Similarly, the “lookback GDP” guidelines will count 2009, 2010, and 2011 spending, which has already exploded far beyond what is fiscally sustainable, or historically precedented. The “glide path” isn’t a serious measure of fiscal sustainability; it places us, in just five years, at the same debt-to-gdp ratio that trigged an economic meltdown in Greece last year. So the bill doesn’t set reasonable baselines, it doesn’t do anything to address the deficit, and if Matt’s work with similar TELs in the states holds, high-income economies like ours tend to use spending caps as excuses to grow spending beyond the levels they otherwise would.

There are some technical merits, but they’re merely cosmetic. Bringing Social Security back ‘on-budget’ is a good start, but this bill still leaves massive loopholes for ’emergency spending’, which the New York Times called a new way of political life six years ago. That trend hasn’t changed one iota since; if anything it’s gotten worse. A unified Democratic Congress couldn’t pass any budget last year. It’s one of the few constitutional powers actually entrusted to the Congress, and they failed. Which leads to my separation-of-powers concerns with this legislation. It’s unclear from a first reading, but where is the authority for Congress to entrust sequestration power with OMB, an executive branch agency?

Finally, there are massive political concerns with the legislation. It seems poised as a cover for fiscally irresponsible co-sponsors like McCaskill and John McCain (who both supported TARP and the GM Bailout; McCaskill also voted for Obamacare while McCain has his own big government medical plan to push) to claim the mantle of fiscal responsibility. We’ve already seen that movie, and it was terrible the first time.

In sum, I don’t see any reason the bill would restrain spending to a responsible or sustainable level. The bill has some good ideas, but they’re wandering in a wilderness of bad ones. The impulse is good, the execution is terrible.

Note: Sorry a rough draft went up on the RSS feed earlier, WordPress is a cruel mistress sometimes.

GAO Report on Local Stimulus Spending

This morning the GAO released a report entitled “Recovery Act: States’ and Localities’ Current and Planned Uses of Funds While Facing Fiscal Stresses.” (A two-page summary is available here.)

Here’s a chart of where the money has gone thus far:

Here are the highlights from the recommendations section:

Accountability and Transparency
To leverage Single Audits as an effective oversight tool for Recovery Act programs, the Director of OMB should

  • develop requirements for reporting on internal controls during 2009 before significant Recovery Act expenditures occur, as well as for ongoing reporting after the initial report;
  • provide more direct focus on Recovery Act programs through the Single Audit to help ensure that smaller programs with high risk have audit coverage in the area of internal controls and compliance;
  • evaluate options for providing relief related to audit requirements for low-risk programs to balance new audit responsibilities associated with the Recovery Act; and
  • develop mechanisms to help fund the additional Single Audit costs and efforts for auditing Recovery Act programs.

Matter for Congressional Consideration: Congress should consider a mechanism to help fund the additional Single Audit costs and efforts for auditing Recovery Act programs.

Reporting on Impact
The Director of OMB should work with federal agencies to provide recipients with examples of the application of OMB’s guidance on recipient reporting of jobs created and retained. In addition, the Director of OMB should work with agencies to clarify what new or existing program performance measures are needed to assess the impact of Recovery Act funding.

Communications and Guidance
To strengthen the effort to track funds and their uses, the Director of OMB should (1) ensure more direct communication with key state officials, (2) provide a long range time line on issuing federal guidance, (3) clarify what constitutes appropriate quality control and reconciliation by prime recipients, and (4) specify who should best provide formal certification and approval of the data reported.  The Secretary of Transportation should develop clear guidance on identifying and giving priority to economically distressed areas that are in accordance with the requirements of the Recovery Act and the Public Works and Economic Development Act of 1965, as amended, and more consistent procedures for the Federal Highway Administration to use in reviewing and approving states’ criteria.