Certain regulatory reforms with deep bipartisan endorsement should be incorporated into contentious fiscal budget agreements, particularly when spending cuts are difficult (which is always).

We’re a couple weeks out from another partial government shutdown if a budget deal is not made by October 1, or if a new stopgap short-term spending package doesn’t push the deadline back a month or so.

Armageddon drama notwithstanding, the federal government never shuts down even though much of it ought to be. Rest assured, taxes will continue coming out of your paycheck whenever “shutdown” happens; Washington simply doesn’t live within its means. That the House Freedom Caucus has been demanding a hold at the $1.47 trillion 2022 level is somehow a problem not just for Democrats but for mainline Republicans.

Like related debt-ceiling skirmishes, these budget impasses occasionally produce calls for cutting red tape (such as limited regulatory budgeting) in exchange for spending hikes.

While regulatory tweaks will not rightsize government, they are necessary steps toward that broader end, equally as critical as spending sanity. As it happens the Republican Study Committee released a slate of regulatory options along with spending ones in its Debt Limit Playbook earlier this year.

Along with insisting upon spending cuts, regulatory streamlining should be made more prominent in whatever fiscal year 2024 deal emerges. This is particularly important given that, in the background, the Biden White House is rewriting the government’s own rulebook for regulatory analysis such that any new regulation from the alphabet soup of three- and four-letter agencies passes muster. Congress has yet to get out in front of these outflanking maneuvers by the administration.

During the debt-ceiling battle a few months back, this column detailed “regulatory budgeting” and other regulatory streamlining options capable of taming the annual flow of over 3,000 rules and regulations. Rather than repeat that still front-burner-relevant case for retrenchment and reform of notice-and-comment rulemaking (go here for even more details), we peel off a different piece related to so-called sub-regulatory “guidance documents.”

A happy and surprising development this summer made clear the existence of ample bipartisan agreement on reforms addressing the thousands of sub-regulatory guidance documents, “interpretative” rules and policy statements, letters, notices, memoranda and other agency proclamations that can confound regulated businesses.

These guidance documents do not receive the public notice-and-comment treatment that ordinary rules do and hence are not supposed to be binding. But, on the other hand, affected businesses might be reluctant to disregard agencies’ “suggestions” (”Nice little business ya got there...”).

In July, the Guidance Out of Darkness Act (or “GOOD Act;” H.R. 890/S. 791) was reported unanimously (41-0) out of the House Oversight and Government Affairs Committee. The “GOOD Act” would simply require portal-style disclosure of the confounding profusion of guidance documents with which the public contends. This bill is the lowest of low-hanging fruit, ripe for being rolled into a budget agreement as a salve. It ought to have passed years ago; Kamala Harris supported it as a California senator.

Such commonsense bipartisan reform agreements should be more commonplace. Remnant guidance document portals still intact or semi-intact from a Trump era executive order allow one to assemble over 100,000 documents to this day. Everyone knows, though, the “inventory” is far greater than that, and increases daily. The GOOD Act would remedy the situation, making locating guidance almost as “easy” as locating laws in the U.S. Code, or regulations in the Code of Federal Regulations.

An additional bipartisan step worth taking now is to implement the "Guidance Clarity Act" (S. 533 / H.R. 4428). The “GCA” was reported unanimously out of committee on the Senate side back in May (the brief committee report appears below).

The Guidance Clarity Act, from Sen. James Lankford (R-Oklahoma) and Rep. Blaine Luetkemeyer (R-Missouri), takes the unassuming but significant step of requiring agencies to affirm that their sub-regulatory guidance documents are not binding on the public.

The concise two-page GCA specifies that, henceforth, a "Guidance Clarity Statement...shall be displayed prominently on the first page" of agency guidance documents, as follows:

On some of the aforementioned “portals” that agencies provide, a similar affirmation does get occasionally made. But the non-binding nature of guidance documents should be asserted uniformly across the federal government, as these proclamations can bypass administrative protections and any abuses can fall particularly hard on more vulnerable small businesses. As GCA sponsor Luetkemeyer observed, “This small but critical statement clarifies for citizens and regulators on the ground that guidance is meant to be helpful. A suggestion that can be put in place or completely ignored. It will help regulators do their jobs more efficiently and small businesses, who lack the resources to employ teams of lawyers, continue to create jobs and grow the economy."

Again, the GCA’s appeal is bipartisan like that of the GOOD Act. Speaking in support back in 2022, Rep. Carolyn Maloney (D-New York) noted that regulation is “complex in the best of times” and that “most do not spend hours reading the Federal Register.” Guidance ought not play the role, intentionally or unintentionally, of inflicting de-facto binding rules on the public.

There’s still more to do on addressing the profusion of guidance beyond the GOOD Act and the Guidance Clarity Act, of course. The issuance of guidance is likely to expand given the surge of spending/regulatory bills enacted in the wake of Covid, such as Biden’s infrastructure and inflation laws. Guidance can, as Luetkemeyer noted, sometimes play "a beneficial and important role in shaping regulatory programs and informing agency employees." But, especially in financial, infrastructure, energy and high-tech sectors like artificial intelligence that”Bidenomics” seeks to influence with top-down executive action, guidance is going to be overly prescriptive. We should be listening to entrepreneurs and let them, not government, create norms, while rolling back that damaging new legislation.

Under Bidenomics, the present lack of clarity over the black-box process by which an agency initiative becomes a rule on the one hand, or a guidance on the other, will worsen. Both since parties acknowledge a mutual concern that agencies can inappropriately default to issuing guidance when they ought to instead be issuing more formal Administrative Procedure Act-based notice-and-comment rulemaking, the problem can be addressed.

Luetkemeyer observed that “guidance is not approved by Congress.” Importantly, though, Congress is supposed to have an opportunity to disapprove it. Like notice-and-comment regulations, prominent guidance documents are required to be submitted to both the Congress and the Government Accountability Office in order to have effect, and to afford Congress the opportunity to “veto” them. Such submissions for rulemakings occur only partially at GAO; and no one can readily tell if guidance is being submitted to Congress at all. Portals and clarity can help improve that oversight.

If history is a guide, spending is going to continue apace after the current budget showdown runs its course. But the opportunity exists to offset some of the spending excesses with moderating regulatory reforms that improve economic health.

Getting major regulatory reforms over the finish line seems a once-a-generation slog. But two administrative process changes with bipartisan support right now — the Guidance Out of Darkness Act and the Guidance Clarity Act — show that it doesn’t always have to be such a chore.