When Congress reconvenes this week, it faces a battle over the best method of recapturing the authority it lost when the U.S. Supreme Court struck down the legislative veto in June.
The court ruled that the legislative veto, a device that gave Congress leverage over the executive branch on hundreds of issues, violated the Constitution, which prescribes only one way for Congress to legislate: Both houses must approve a bill and submit it the president for his signature. Provisions contained in hundreds of bills that called for one-house and two-house vetoes without presidential involvement are unconstitutional, according to the court.
Although the veto provisions have been used to influence such executive-branch activities as deploying troops, in the upcoming debate Congress will focus on exercising control over regulatory agencies. The possible options cover a wide spectrum, but three proposals are receiving the most attention on the Hill:
* A plan proposed by Rep. Elliott H. Levitas (D-Ga.) would require both houses and the president to approve all rules of regulatory agencies before they are enacted.
* Rep. Henry A. Waxman (D-Calif.) is proposing a system whereby certain rules would be submitted to Congress and the president for review. Both houses and the president would have to disapprove a rule to prevent its enactment.
* A third proposal, backed by five senators, straddles the middle ground between the Levitas and Waxman positions. It essentially adds expedited procedures to Waxman's joint resolution of disapproval, to prevent pigeonholing in committee.
No one can predict which bill will become the focus for the fight, although likely candidates include the Federal Trade Commission and Consumer Product Safety Commission reauthorization bills.
In a move characterized as "bizarre" by one congressman, the full House added both the Levitas and Waxman proposals to the Consumer Product Safety Commission reauthorization bill before the August recess. The Senate already passed a different version of the CPSC bill, so the conflicts will have to be resolved by the conference committee.
The Levitas proposal, the most restrictive suggested so far as an alternative to legislative veto, flips the oversight mechanism from a negative--a veto--to an affirmative. As such, it essentially would transfer rulemaking authority from the CPSC to Congress.
Levitas said such a joint resolution of approval might not be appropriate for all agencies, such as the Federal Trade Commission, but only those that don't promulgate many rules. The CPSC has issued 35 rules in 10 years, Levitas noted.
"I think we ought to let the FTC propose rules, rules with long-lasting effect, but I think Congress should have some role in this rulemaking mechanism," he said.
"I think the Levitas proposal is highly undesirable," said Rep. James Florio (D-N.J.), who heads a House Commerce subcommittee that has oversight responsibility for the FTC. "In effect, it makes regulatory agencies advisory councils . . . it runs counter to 70 or 80 years of administrative law.
"Congress is having a hard enough time to do what we're supposed to do without getting bogged down in regulations," Florio said. "I don't think it's in anybody's interest, and most importantly, not in Congress' interest, to get involved in the regulatory process."
The Waxman procedure could be considered less onerous to the agencies because both Congress and the president would have to act to disapprove a rule; in some cases, the disapproval of only one house created a legislative veto, said Larry Fullerton, the staff member who deals with the FTC for the Senate Commerce, Science and Transportation Committee.
Critics of the Waxman approach say that a committee chairman sympathetic to the regulation could sit on a disapproval motion indefinitely.
The middle-ground proposal, offered by Sens. Carl M. Levin (D-Mich.), David L. Boren (D-Okla.), Bob Kasten (R-Wisc.), Charles E. Grassley (R-Iowa) and Dennis DeConcini (D-Ariz.), would give Congress and the president 60 days to disapprove a regulation and would include provisions to prevent a committee from blocking action.
Levin wants his approach applied to all agencies for "major rules," but not for every rule a commission issues. "I don't think we want or should withdraw delegated authority to the executive branch. I don't think Congress can legislate in all those areas," he said.
"I do think the public wants some kind of mechanism to make these agencies accountable," Levin added. He said this control maintains the proper balance of power between the legislative and executive branches.
A Levitas-type approach stands "less chance of winning in the Senate," although Kasten and Grassley are both looking at more restrictive alternatives, he said.
The House traditionally has been a stronger supporter of the legislative veto power than the Senate, but both favored a clear delegation of power to the regulatory agencies. In 1975, when it passed the Magnuson-Moss Act, which clarified the FTC's rulemaking authority, "Congress made it clear it wanted a vigorous FTC with rulemaking authority," an FTC staffer said.
Today, many in Congress are rethinking their positions about delegating power. For example, although they favor different approaches, Levin and Levitas expressed similar concerns over the authority given to these agencies.
Congress has "ducked some hard issues by delegating them" to regulatory agencies, Levin said. "Unbridled executive power is bad, and we want some way of reining it in."
Levitas concurs. "We've overdelegated to these agencies . . . perhaps the way we regain control is to restrict the delegation to begin with," he said.
Officials at regulatory agencies who issue rules are not answerable to the electorate in the same way Congressmen are, Levitas argues. But other members say that final congressional approval or disapproval does not make the process any more democratic.
Senate Commerce Committee Chairman Bob Packwood (R-Ore.) "now opposes legislative veto . . . because of the inbalance in lobbying power when a rule comes before Congress," one staff member of the committee said.
The week Congress was scheduled to review the FTC's used-car rule, one of the commission's most controversial measures that required dealers to list "known defects" on used cars, the dealers held a convention in Washington. Hundreds of them descended on their congressmen and the rule was vetoed by a vote of both houses. "It wasn't a fair fight," a Commerce committee official said.
Florio also said he was not a supporter of legislative veto and does not believe a replacement is necessary.
FTC Chairman James C. Miller III has testified in favor of a joint resolution of disapproval, similar to the Levin-Boren proposal, although the commission as a whole has not taken a stand.
CPSC Chairman Nancy Harvey Steorts said, "I wouldn't have a problem with oversight by Congress as long as it's in a precise amount of time."