October 11, 1978
Page 35489
Mr. BENTSEN. Mr. President, the amendment I am offering today is based upon S. 3263 which I introduced on June 29, 1978, and which has five cosponsors, Senators HUMPHREY, GARN,
HAYAKAWA, INOUYE, and PAUL HATFIELD.
This legislation is the result of extensive hearings which my Subcommittee on Economic Growth and Stabilization of the Joint Economic Committee held in April to investigate the impact of the explosion of Federal rules and regulations on American business, consumers, and taxpayers.
The hearings uncovered numerous outrageous examples of businessmen, particularly small businessmen, who confront the impossible situation where complying with one regulation requires violating another. This problem serves to diminish entirely what little credibility the Federal Government has left in our country.
My amendment is designed to help eliminate the irrationality of conflicting or overlapping regulatory policies.
Today, we have some $105 billion worth of costs that are passed on to the American consumers.
That is $500 for every man, woman, and child in this country.
Mr. Bosworth, of the Council of Wage and Price Stabilization Commission, stated we have at least another $37 billion worth of those regulations in the pipeline.
Now, what this legislation does is complement the very fine job done by the Senator from Maine in crafting an excellent piece of legislation, sunset legislation.
This has been drawn to mesh with his program.
Under the proposed legislation, the President is required to prepare and submit a regulatory duplication and conflicts report to Congress for each program at the time it is subject to congressional review and reauthorization under S 2.
The report shall:
First. Identify regulatory policies which result in duplicative or conflicting rules or regulations within the same or other programs.
Second. Identify Federal regulatory policies which result in rules or regulations which duplicate or conflict with those of State and local governments.
Third. Identify the provisions of Federal law which authorize or require such duplicative or conflicting regulatory policies.
Fourth. Make recommendations to resolve conflicts between regulatory policies.
Fifth. Make recommendations to resolve or eliminate duplication between those policies.
Sixth. The President's recommendations are scheduled to be available to congressional committees when they are subjecting Federal agencies and programs to reauthorization as provided in S. 2.
My amendment would help to insure that the congressional committees which are charged with the responsibility of reauthorizing Federal programs will focus on the regulatory implications of those programs to eliminate overlapping or conflicting regulatory policies in the process of renewing them. Certainly, one index of the value of a Government program is whether it has produced Federal rules or regulations which run head-on into or overlap with other rules or regulations of other Federal or State and local programs.
My amendment is carefully crafted to complement the process established by the historic legislation drafted by the very able Senator from Maine and his distinguished colleagues. It is intended to put an end to absurd situations like that described by the president of a small food processing firm who testified during our hearings that—
The United States Department of Agriculture requires that our kitchen floors be washed repeatedly for sanitary purposes, yet the Occupational Safety and Health Administration rules require that floors must always be dry. What is a man to do?
That is the kind of issue which the Congress should be forced to address as it decides the litmus tests a program must pass in order to be continued — my amendment is designed to see to it that Congress does indeed address the issue of conflicting and overlapping regulatory policies as an integral part of the process of deciding whether or not to give a Federal program a new lease on life.
There really is not much sense in offering programs unless we understand the impact and the conflicts that are going to be set up and what is going to happen to people who try to comply with them.
We had the situation of one man who testified before our committee, who said that the U.S. Department of Agriculture requires that the kitchen floors of his small food processing establishment be washed regularly, daily. He said, on the other hand, that the Occupational Safety and Health Administration rules require that his floors remain dry all the time. He said :
What is a law-abiding citizen supposed to do in this kind of circumstance?
This is what we are trying to do: We are trying to assist the private citizen in knowing what the regulation is, to try to avoid the conflicting regulations, and cut back on some of the red tape.
Mr. MUSKIE. Mr. President, I know that the Senator has pursued this objective a long time. He introduced separate legislation to that end, and we have worked with him closely in working out this amendment so that it would conform to the context of the sunset legislation.
I am delighted to accept the amendment. There is no disagreement with it on the part of anyone on the committee.
Mr. BENTSEN. I thank the distinguished Senator and the leader for the minority in accepting this proposal.
The PRESIDING OFFICER. Is all time yielded back?
Mr. MUSKIE. I yield back the remainder of my time.
Mr. BENTSEN. I yield back the remainder of my time.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment.
The amendment was agreed to.
Mr. MUSKIE. Mr. President, I move to reconsider the vote by which the amendment was agreed to.
Mr. BENTSEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. MUSKIE. Mr. President, Senator Percy, who has two amendments to the bill, is on his way to the floor.
Pending his arrival, I yield to Senator ROTH.
The PRESIDING OFFICER. The Senator from Delaware.
UP AMENDMENT NO. 2053
Mr. ROTH. Mr. President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
The Senator from Delaware (Mr. ROTH) proposes an unprinted amendment numbered 2052.
Mr. ROTH. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 29, insert the following: a new paragraph (5) and on page 29, line 1, renumber "(5)" to "(6)"and on line 4 renumber "(6)" to "(7)". The new paragraph is as follows :
"(5) An assessment of the cost effectiveness of the program, including where appropriate, a cost-benefit analysis of the operation of the program."
Mr. ROTH. Mr. President, I am submitting this amendment to strengthen the requirements of the in-depth program reexamination.
My amendment will force the appropriate committees to report on the effectiveness and benefits of the program in terms of dollars.
The assessment of cost-effectiveness will require the committees to ascertain which of alternative methods of achieving a given goal is the least costly.
The cost-benefit analysis of a program will show its aggregate costs and its benefits to the economy, the taxpayer, and the society.
In essence, my amendment will make the committees analyze how well the money for a program is being used.
Mr. MUSKIE. Mr. President, we have,of course, discussed this amendment together. It is, I think, a very valuable addition to the bill. I am willing to accept it. I yield back the remainder of my time.
Mr. ROTH. I yield back the remainderof my time.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment.
The amendment was agreed to.
Mr. MUSKIE. I yield to the distinguished: junior Senator from Iowa to call up his amendment.
UP AMENDMENT NO. 2054
(Purpose: To add a foresight provision to the program re-examination procedures)
Mr. CULVER. Mr. President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
The assistant legislative clerk read as follows:
The Senator from Iowa (Mr. CULVER) proposes an unprinted amendment numbered 2054:
On page 29, after line 2, insert the following:
(2) An identification of any trends, developments, and emerging conditions which are likely to affect the future nature and extent of the problems or needs which the program is intended to address and an assessment of the potential primary and secondary effects of the proposed program.
On page 29, renumber paragraphs (2) through (6) as paragraphs (3) through (7), respectively.
Mr. CULVER. Mr. President, this amendment would add a "foresight provision" to the procedures in the sunset legislation for periodic, comprehensive reexamination by congressional committees of programs under their jurisdiction. The report required by these procedures now must include, to the extent deemed appropriate, such items as the objectives intended for the program; an estimate of the number and types of persons served by the program, and an assessment of the relative merits of alternative approaches which might achieve the same purposes.
Mr. President, my amendment would add to that list of requirements an identification of any trends, developments, and emerging conditions which may affect the future nature and extent of the problems or needs which the programs are intended to address. It would also ask committees to assess the potential primary and secondary effects of the programs under review.
Mr. President, the purpose of this amendment is to sensitize Congress in general, and in particular the committees with jurisdiction over various subject areas, to the necessity of anticipating future technological, social, economic and other changes and of preparing to deal with approaching problems before they grow into emergencies.
It is clear to me after 14 years in Congress, that on the one hand, we have not done a decent job in fulfilling our oversight responsibilities, on the other hand with very, very few exceptions, we have not done any job at all in terms of anticipating future needs and requirements for public policy. More often than not, when a public policy problem comes to our attention, it strikes us from the blind side; we are constantly reacting to emergency conditions. We often are reacting with obsolete data by the time we act. We get it too late, we never look to see how it is working, and we develop constituencies that keep up doing the wrong thing indefinitely.
Mr. President, we live in a time of unprecedented, accelerated change. Our margin of error is not what it once was, our resources are finite, not infinite, and there are interdependent ramifications of whatever we do. So I think it is increasingly imperative that when we consider legislation, we try to recognize trends and developments to the extent possible. and try to make available data as to the long-term consequences and implications of various problems and policy options.
This amendment, then. would add to that list of requirements in the bill an identification of any trends, developments and emerging conditions which may affect the future nature and extent of the problems or needs which the programs are intended to address.
Mr. President. if we take just the example of the baby boom in America, suddenly, we wake up and see we have a population explosion. So suddenly, we decide to start building schools and training teachers. We continue building all these schools and training all these teachers and nobody notices that demographics no longer dictate those activities at that level. But we build up such a head of steam that we do not slow down until we have ourselves mortgaged to the hilt.
It is just like the apple going down the neck of the ostrich. We miss it when we talk about building schools, we miss it when we talk about building job opportunities for the cohort of increased population when it is eligible for the work force. We do not anticipate that need. And when we do react, we maintain our efforts after they have ceased to be useful and create new problems.
We build too much; we have no plans for cutting back or adjusting. Now we should ask, in the mid-1990's, when this population is in the middle age, what will we have done to prepare for that stage of this population bulge.
Mr. President, the accelerating rate of change in recent years has too often thrust upon us problems ranging from the energy crisis to urban unrest before we were capable of responding to them. In addition we have learned that our own society and the world as well are characterized by the increasingly inter-related nature of problems. Decisions which we make today in transportation or agriculture, for example, will impact not only on those areas but may also affect the shape and safety of the communities in which future generations will live and even life and death in distant lands.
I am hopeful, Mr. President, that when we involve ourselves in such an exercise of trying to better anticipate long-term policy requirements, we have the appropriate coordination among our overlapping functional jurisdictions to avoid tunnel vision. We need to be alert to one policy decision overlaps and impacts on neighboring ones.
This amendment will thus encourage the Senate to look ahead — to the extent that it is feasible to do so, in order to get in front of the curve and take timely action on these and other matters, we cannot afford simply to rush into the future, looking into a rearview mirror.
It is altogether appropriate that the Senate should take this action. In so doing, this body would only be acknowledging the value of developing a capacity which is routinely utilized by most other modern institutions. Business corporations and major universities regularly forecast and plan for developments in their areas of concern in order to have the most advantageous competitive position. In my own State of Iowa, at least 10 other States, and a number of localities, citizens have organized groups to choose the kind of future in which they wish to live and to initiate steps to achieve it.
We got it started in our own State as a result of an initiative I proposed in January 1972, to set up a conference on the future for our State. It has been going every year since. We have had about 50,000 citizens participating in it, setting goals and objectives for our State so we can better help shape and choose the kind of future in which we want to live, to initiate the necessary steps as to how we get there from here.
In addition, the Office of Science and Technology of the National Conference of State Legislatures has called foresight an "interlocking function" with both oversight and sunset and is studying additional possibilities for action. The House of Representatives as part of its rules, since 1974, has assigned to its standing committees the responsibility of undertaking "futures research and forecasting on matters within (their) jurisdiction".
As a Member of the House in 1972 and 1973, when we studied committee jurisdictions, this foresight provision was one which I proposed that was accepted by the House of Representatives. At least a score of other nations — of all political philosophies — have formed "futures" organizations, ranging from small advisory groups to powerful departments to assist them in forecasting and planning functions.
Mr. President, the idea that the Senate should improve its capacity to anticipate problems is not mine alone. The Commission on the Operation of the Senate, after its studies of the issue, recommended that we act to make improvements in this crucial institutional capability.
I believe that adding this future-oriented requirement to the sunset bill — which already requires committees to evaluate the past performance of Federal programs and to assess their present merits — is a logical corollary to this important legislation
I thank the floor managers of this bill for affording me the opportunity to present this amendment. I hope they find it possible to accept it.
Mr. MUSKIE. Mr. President, before we proceed further, may I ask for the yeas and nays on passage of the bill?
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, in response to the amendment offered by the distinguished Senator from Iowa, I have had a chance, of course, to study it. I find it a most appropriate addition to the six review elements in the bill which any committee must follow in conducting an in-depth examination of a program. I know that Senator CULVER has made a theme in his career in the Senate, of the objective of getting ahead of the curve and anticipating changing conditions before they become emergencies. That is an important objective. I could not agree with him more that, all too often, we are looking in the rearview mirror instead of ahead and, oftentimes, we are looking down at the floor of the car instead of at what lies ahead.
That is because of the pressure of problems arising out of the past with which we are still dealing. It is to hopefully refocus our attention on the need to try to anticipate the future that he has offered this amendment.
I am delighted to accept it. I have no objection to it.
Mr. CULVER. I thank the distinguished chairman.
Mr. ROTH. Mr. President, I, too, congratulate the distinguished Senator from Iowa for offering this amendment.
I think it is important that we spell out with particularity that in evaluating programs we look ahead to attempt to determine what the future needs and impact will be.
For that reason, I am pleased to accept the proposed amendment by the Senator from Iowa.
Mr. MUSKIE. I will yield back the remainder of my time.
Mr. CULVER. Mr. President, if I could just express my own admiration for their dedication to the sunset approach to both the floor manager of this legislation and to the distinguished minority floor manager.
I have been privileged to be a cosponsor under the leadership of the Senator from Maine of this legislation. I cannot think of anything more important to the more effective operation of this institution than to strengthen and increase our ability to perform responsibly, both oversight and foresight functions. I think it is crucial to more effective performance of our responsibilities.
I want to express my admiration to him and to the Senator from Delaware for their persistence in insisting that this is far too important for Congress to ignore any longer, and for the long, hard fight that led to this day and, I hope, favorable action on the matter.
Mr. MUSKIE. I yield back the remainder of my time.
Mr. ROTH. I yield back the remainder of my time.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment of the Senator from Iowa.
The amendment (UP No. 2054) was agreed to.
Mr. MUSKIE. Mr. President, the distinguished Senator from Nevada, as a former chairman of the Rules Committee, has had occasion to study this whole idea extensively over the past 3 years.
He has been most considerate of our attempts to get hearings when he was almost overwhelmed by the work of the Rules Committee.
I am most appreciative of it. At this time I am happy to yield for whatever statement he wishes to make.
Mr. CANNON. I thank the Senator for yielding.
Mr. President, I have closely followed the development of this legislation through its hearings before the Governmental Affairs and Rules Committees, and I appreciate and share Senator MUSKIE's objectives in his work on this bill. I have been, and continue to be, a supporter of the principle behind sunset — that is, that our programs should be working to fulfill their objectives and the needs of the American public. We should eliminate unnecessary waste and needless expenditure of our citizens' tax dollars.
I expressed strong opposition to the bill in the form which was reported by the Senate Rules Committee because I believed that it contained serious deficiencies which would have resulted in the. abrogation of congressional responsibilities to the executive branch; that it would have served to wrest responsibilities for programs from the authorizing committees, to which the congressional system has delegated such responsibilities; and that procedural aspects of the bill were too burdensome.
I believe that the emphasis of the Congress in acting on this "sunset" concept ought to be one of review and reauthorization, rather than termination. We need to evaluate our programs to see where their deficiencies lie. If indeed a program has outlived its usefulness, then we should consider ending the program. More likely than this prospect, however, is that a program needs some fine tuning to bring it to the realization of its goals.
As I understand it, Mr. President, this substitute to S. 2 requires that all Government programs (with a limited number of exceptions) be reviewed and reauthorized at least once every 10 years, according to a schedule. There must be such an authorization for the program before funds could be appropriated. There would no longer be permanent apropriations or authorizations. In conjunction with its reauthorization activity, each congressional committee would review all programs under its jurisdiction, and submit a review report to the Congress. So as to help a committee identify and keep track of the programs under its jurisdiction, a program inventory will be established and maintained.
Along with this ongoing review of programs, a committee shall select particular programs for comprehensive review, and will submit its plans for intensive review together with its funding resolution in the first session of each Congress. Finally, the substitute provides simplified procedures which will help insure against inadvertent termination by continuing a program for an additional year in the event that procedural or other considerations have delayed the statutory reauthorization.
The action-forcing mechanism in the bill continues to create problems for me. I fear that automatic termination is a dangerous approach. It assumes that a program is invalid — that is, that a program must be revalidated in order to continue, rather than reviewed and reauthorized.
The mechanism raises questions regarding the soundness of the congressional process, since beginning with a "negative" posture and then making that stance positive seriously questions the initial congressional decision, and may produce distrust of future congressional enactments. This is certainly not what review and reauthorization are intended to accomplish.
Automatic termination may reawaken old policy issues, so that the question under discussion in Congress would not be the merits or current operation of a program, but rather the actual existence of a program — a battle which had already been fought and won.
Additionally, automatic termination could mean inadvertent termination. Even with the significant changes in the substitute before us — and I believe the substitute does reduce the danger of inadvertent termination — a program might not be able to be considered for a variety of reasons, including dilatory or strategic maneuvers, thereby perhaps ending the life of a very worthwhile and productive program. I am concerned about this mechanism and its implications.
In my dissenting views to the Rules Committee report on this bill, I stated that I was not convinced that the "emergency" procedures in title V of the bill adequately addressed my concerns that procedural floor games might prevent a bill from being considered.
There were no provisions that insured that a measure would come to the floor, and a filibuster or protracted debate could have ended a program. Fortunately, I am pleased to see that the substitute goes far in answering my concerns in this area. The provisions regarding consideration of this emergency measure are substantially tightened. The 50 hours of debate on the regular authorization measure required by S. 2 before introduction of an emergency reauthorization has here been reduced to 15 hours, a much more satisfactory requirement. Also, streamlined measures have been incorporated to help assure that such an emergency reauthorization will be considered by the Senate prior to termination. Although I have reservations as to whether any procedures can adequately insure against the possibility of inadvertent termination, I am pleased that this section has been streamlined so as to make it far more workable than it was.
In another area, Mr. President, S. 2, as reported, contained language which indicated that the review which a committee was to perform had to contain information sufficient "to permit a determination as to whether the program or the laws affecting such program should be continued without charge, continued with modifications, or termination." I thought that this language could have negated an earlier amendment, which had allowed an authorizing committee to determine the nature of its review. Under the language of the bill, as reported, the Parliamentarian would have been in a posture of deciding what was "sufficient."
I am pleased to note in this substitute that the Parliamentarian need only certify the inclusion in the committee's report accompanying an authorization for new budget authority of a section containing the committee's recommendations regarding the program. The authorizing committee's position is strengthened by this amendment, and I support this change.
I was also apprehensive that the title II inventory provisions of S. 2, as reported, might somehow be construed as dictating to a committee how and in what manner of groupings its reviews were to be done. Under the reported bill, this inventory of programs within a committee's jurisdiction was to be compiled by the General Accounting Office, and appeared to direct the manner by which committees would conduct their review processes. The substitute makes a substantial clarification of title II in S. 2, for it specifies that this inventory is only to be a working document for a committee, not a binding document to which a committee must adhere.
Since the purpose of the inventory always has been to let a committee know what programs it has under its jurisdiction, and to assist a committee in its review functions, I am glad to see that the language of section 201(b) now specifically states that:
The purpose of the program inventory is to advise and assist the Congress in carrying out the requirements of titles I and III. Such inventory shall not in any way bind the committees of the Senate or the House of Representatives with respect to their responsibilities under such titles and shall not infringe on the legislative and oversight responsibilities of such committees.
Another aspect of S. 2, as reported, which troubled me was the inflexibility of the review schedule. This schedule could only be changed by the enactment of a law — which ran the risk of a Presidential veto. Under S. 2, as reported, such a veto could have imposed on an authorizing committee a schedule which both the committee and the Senate did not believe to be desirable. I support the change which appears in this substitute, except for the Percy amendment — namely, that — except for changes affecting permanent appropriations — the schedule can be changed by concurrent resolution, and thereby can avoid the danger of a Presidential veto. This should allow the Congress to evaluate and review the schedule for review and reauthorization which we have imposed on ourselves.
In summary, Mr. President, I support the changes which have been made in this amended version of S. 2. I believe that these improvements go a long way toward resolving my concerns. They recognize the expertise and jurisdiction of the authorizing committees of the Congress in a way in which S. 2 did not. The prospect of termination through procedural delays has at least been ameliorated. The authorizing committees now will perform the review to the extent which they determine necessary; this seems only logical, since Congress has vested in its committees the responsibility for the day-to-day oversight of its enactments. While I continue to have serious questions and doubts about the advisability of the termination mechanism, I believe that the Congress needs to improve its own review procedures. If automatic termination turns out to be as dangerous as I fear, then we of course will come back and amend this statute. However, at this time I will reluctantly support this version, and to maintain a vigil over its enforcement, except, Mr. President, for the Percy amendment, which I understand may be offered, and it seems to me it goes too far.
I am hopeful that it will result in more effective decision making on our part, and it is toward that end that I will vote to support S. 2 as amended — mostly because of its move in the direction of review, and not so much because of its approach.
Mr. MUSKIE. Mr. President, I thank my good friend from Nevada.
Mr. President, I yield to the ranking Republican member of the full Governmental Affairs Committee. Senator PERCY has followed this legislation closely, as a cosponsor, and an original sponsor of a similar piece of legislation dealing with regulatory reform.
I yield to him for whatever statement he wishes to make and for the purpose of calling up amendments which he has to the bill.