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Say a genie appeared to Sen. Mike Lee and told him he could pass any bill of his choice. The senator said, “a thousand times out of a thousand, I would choose the REINS Act” — legislation he sponsored that would make it so Congress has to approve big regulatory changes from federal agencies.
At a Q&A hosted by the Sutherland Institute at the University of Utah’s Hinckley Institute of Politics on Monday, Lee drew from the Founding Fathers, Supreme Court cases and enlightenment philosophers to assert something has gone amiss with the balance of power between the federal government and state governments. And he thinks changes in the Senate leadership could be an opportunity to better distribute powers between branches of government.
“I’m not worried about the regulations that talk about what time the lights go on in the Commerce Department,” said Lee. He is concerned about federal regulations that have a similar force as federal laws — whether it be their impact on the economy or legal implications for members of the public.
The authors of the Constitution were concerned about concentrating too much power in just a few hands because it could threaten individual rights, said Lee.
“If you make sure that no one person, no one group of people can aspire to much of it, we will be better off preserving liberty and lead to a safer, more prosperous, more sustainable form of government,” said Lee. The Constitution separates out powers to different branches of government to prevent the consolidation of too much power in one place.
Lawmaking power is the most dangerous of the governmental powers, said Lee, and Congress is the most accountable branch of government. Handing over part of that power to “a portion of the executive branch run by unelected, unaccountable, nameless, faceless bureaucrats — that’s dangerous.”
It also makes it so people are unaware of what is legally required of them because most Americans do not have time or inclination to sift through what’s called the Federal Register (the home of federal regulations and rules), said Lee.
Lee said he has two large stacks of paper in his office.
One is around a few thousand pages, he said, gesturing with hands a stack of paper less than a foot tall. It is all the laws passed by Congress in the previous year. The other is 13 feet and around 100,000 pages — the Federal Register.
These regulations are effectively laws, he said. Lee pointed toward Article 1 of the Constitution that says, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
But federal regulations essentially become like law without going through the necessary legislative process — which is one of the reasons Lee takes issue with big federal regulations.
Besides federal agencies accruing power, Lee said he has also seen power consolidated in the chambers of Congress.
“I call it the ‘law firm,’” he quipped. It’s a term Lee uses to “affectionately refer” to top Republicans and Democrats in the Senate and House “currently comprised of Schumer, McConnell, Johnson and Jeffries.”
Lee was speaking about Majority Leader Chuck Schumer, a Democrat from New York, Senate Minority Leader Mitch McConnell, R-Ky., House Speaker Mike Johnson, R-La., and House Minority Leader Hakeem Jeffries, D-N.Y.
The power of ‘the firm’ has expanded in the last 50 to 90 years, Lee said. Many members of both chambers of Congress believe they work for their party leader, Lee said, and he thinks the Founders would be uncomfortable with that.
Restoring federalism will be difficult, Lee emphasized during the event, but a change in Senate leadership could have a positive impact. The Senate operates under certain rules, derived from Robert’s Rules of Order, he explained. Robert’s Rules of Order are a set of parliamentary procedures designed to give all participants equal footing. He believes Republicans need a leader who acts differently within those rules.
Senate Republican Leader Mitch McConnell will be stepping down from his leadership role soon after serving as a party leader for nearly two decades. For Republicans, this is a live issue, Lee said, explaining he has Democratic friends and colleagues in the Senate who feel similarly to him, but Republicans have an opportunity to fill a vacancy.
Lee said there are practices of Congress and the Senate he thinks need to change. He said spending bills are too long, unfurled with not much notice and sometimes include “some really ugly special interest giveaways.” Senators do not have much chance to make amendments because the time to discuss bills is closed quickly, he said.
“What I’m trying to do is not change the Senate rules so much as change the way we interact with the rules,” said Lee, explaining the rules do not put different senators on higher playing fields than others. If either the Republican or Democratic Party interacted differently with the rules, he said they would be in a better spot.
In a letter obtained by Politico, Lee outlined the principles he believes Republicans should use to guide their approach to selecting a new Senate Republican leader. He said Senate Republicans should consider how they can change procedures to make it easier for them to make changes to proposed legislation.
Lee said in the letter he thinks there should be more time and structure for appropriations legislation and omnibus bills. “We should have no problem setting a schedule for consideration four weeks in advance of that deadline. Providing this time will allow us to craft better laws and give the American people a real opportunity to engage in the legislative process.”
On top of these principles, Lee wrote that Senate Republicans should have a concentrated strategy to work toward shared conservative policy goals. He is looking for a leader who facilitates a shared vision of those goals and who presents specific strategies. Lee said these reforms would help “restore the Senate’s role as a place where differences are debated and resolved, not hidden behind closed doors.”
Rather than offering a solitary solution, Lee said there needs to be a few changes to return to federalism — the way Senate leadership works being one of them along with passing the REINS Act (the Regulations from the Executive in Need of Scrutiny Act).
The Supreme Court’s decision to do away with Chevron deference was good, he said, referencing a recent decision by the court. But it was a relatively minor step compared to the work left to do. He said he worries about celebrating the decision too much in a way “that eclipses and obviates the need for reform as far as the delegation of lawmaking power.”
“What still needs to happen is that the people deserve to be on notice as to what the law requires of them,” said Lee. This would happen if elected lawmakers meet and go through the proper constitutional process for notifying people about the kind of laws they are passing.
There would not be a need for the REINS Act if the Supreme Court started enforcing the non-delegation doctrine to prevent Congress from giving away its lawmaking authority, Lee said, adding he believes this issue is “not inherently partisan.” Sometimes this issue will bug Republicans more than Democrats, or vice versa.
It costs the American people money and it benefits “a small, wealthy elite class of lawyers, accountants, compliance specialists and lobbyists that tend to inhabit the counties surrounding Washington, D.C.,” said Lee.
“We can’t cut the corners when it comes to political accountability because when we do that, we all get hurt.”