Alexander: Congress Showing Bipartisan Interest in “Weeding the Garden” of Bad Laws, Regulations

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 “Nothing used to make me madder as governor than to look up towards Washington and see some member of Congress coming up with a big idea, holding a press conference, passing a law, taking credit for some great leap forward in sending the bill to me as governor. Then the next thing I know, that congressman would be home in Tennessee at the Lincoln Day Dinner or the Jackson Day Dinner giving a big speech about local control.” -- Lamar Alexander

WASHINGTON, D.C., May 8 – In a keynote speech yesterday at the American Action Forum, Sen. Lamar Alexander (R-Tenn.) said that he is working to address overregulation in higher education and the administration’s use of regulatory guidance—two examples of “federal government overreach”—and that Congress is showing a bipartisan interest in “weeding the garden” of bad laws and regulations.

He said, “Nothing used to make me madder as governor than to look up towards Washington and see some member of Congress coming up with a big idea, holding a press conference, passing a law, taking credit for some great leap forward in sending the bill to me as governor. Then the next thing I know, that congressman would be home in Tennessee at the Lincoln Day Dinner or the Jackson Day Dinner giving a big speech about local control.”

He continued, “The case of higher education has been the piling up of well-intentioned regulations that strangle our more than 6,000 colleges and universities. The case of regulatory guidance, is the inclination of our legislative bureaucrats to forget why we had an American Revolution, which was against a king. The agencies appear to be using guidance, which is free of notice and comment requirements—that means that people don’t have any say about it— to put binding requirements on American businesses and colleges and universities.”

On the issue of overregulation in higher education, Alexander said the Senate education committee is undertaking, “a bipartisan effort to examine these regulations – to identify which ones are the problems, and see if we can get rid of them or simplify them.” He continued, “More than a year ago, four members of the committee—Senator Mikulski and Senator Bennet, two Democrats, and Senator Burr and I, two Republicans—asked a group of distinguished educators to examine the federal rules and regulations for colleges and universities.  They returned to us a document with 59 specific recommendations—requirements and areas for Congress and the Department of Education to consider —including 10 that were especially problematic. They told us that the colleges and universities were operating, in their words, in a ‘jungle of red tape.’”

On the issue of regulatory guidance, Alexander said that some federal agencies are using guidance to make new laws without allowing notice and comment from the public.

“It’s very important that Congress make the law,” he continued. “It’s very important because Congress answers to the people. That’s the way our government ought to work. When Congress isn’t doing its job, the people can throw the bums out. It is very hard for the voters to do that to an unelected bureaucrat. … So, I’m about to begin a project with one of our outstanding new senators, James Lankford of Oklahoma, to examine whether agencies are abusing guidance and how to solve that problem.”

Alexander is chairman of the Senate Health, Education, Labor and Pensions Committee.

The senator’s full remarks are below:

Thank you for what the American Action Forum does. I’ve had a burr under my saddle for a long time about too much federal regulation. You always in politics have a hot button. That’s my hot button. I had it when I was governor. I had it when I was university president. I had it when I was Education Secretary. I probably contributed to it when I was Education Secretary, so I’ve been trying ever since to do something about it.

Overregulation is annoying. It wastes time and money. It interferes with prompt decision making. It superimposes someone else’s judgment on what you are trying to do. It interferes with your freedom. If it comes from Washington, D.C., it usually prescribes a one-size-fits-all solution that doesn’t fit the world in which you live.

Washington, D.C., in my judgment, is populated by too many elected officials of both political parties who think that because they take a one-hour airplane ride from their hometown that they suddenly get smarter when they get here.

Nothing used to make me madder as governor than to look up towards Washington and see some member of Congress coming up with a big idea, holding a press conference, passing a law, taking credit for some great leap forward in sending the bill to me as governor. Then the next thing I know, that congressman would be home in Tennessee at the Lincoln Day Dinner or the Jackson Day Dinner giving a big speech about local control.

So, I’ve had a burr under my saddle for a long time about too much federal regulation.

I’m going to talk about two subjects this morning:  overregulation of higher education and regulatory guidelines. What connects the two? Federal government overreach.

The case of higher education has been the piling up of well-intentioned regulations that strangle our 6,000 colleges and universities.

The case of regulatory guidance, is the inclination of our legislative bureaucrats to forget why we had an American Revolution, which was against a king.

The agencies appear to be using guidance, which is free of notice and comment requirements—that means that people don’t have any say about it— to put binding requirements on American businesses and colleges and universities.

To solve the problem, we have to have a bipartisan desire in Congress to weed the garden of bad laws and bad regulations and keep the garden clear. It’s always been very hard to pass a law in this country. It ought to be very hard also to create a new regulation.

The good news is I believe for the first time in a long time there is bipartisan interest in weeding that garden. I’d like to tell you a little bit more about it.

Let me begin with higher education regulations.

Sometimes it’s best to approach an issue with examples, so let me use three.

More than a year ago, Vanderbilt University in Nashville hired the Boston Consulting Group to determine how much it costs the university to comply with federal rules and regulations on higher education.

The answer:  $150 million in a single year – or 11% of the university’s total non-hospital expenditures.

Chancellor Nick Zeppos of Vanderbilt says this adds about $11,000 in additional tuition per year for each of the university’s 12,700 students.

The second example:

Each year, twenty million families fill out a complicated 108 question form called the FAFSA.

108 questions. Now, think about this: 20 million American families fill this out. If you want a federal grant or you want a federal loan, you fill this out first and you fill it out every year. Now, you can do it online. After you’ve done it a few times, you know, it gets easier. But, several of our experts in this country that came from all different directions testified before our education committee in congress that we only really needed two questions. What’s your family income? And what’s the family size? That would give you 95% of what you needed to know for the government to give out the $100 billion of student loans and the $33 billion of Pell grants that it gives out every year.

So, Senator Michael Bennet and I and Cory Booker and Richard Burr and Johnny Isakson, six of us, Democrats and Republicans have a bill in to cut this [holding up FAFSA] to this [holding up short form].

Now, we may not get that far, but it’ll be closer to this [holding up short form] than this [holding up FAFSA] when we get through.

And, the President has even said he thinks it is a good idea. In his budget, he said that he could think of thirty or forty questions that could come off this.

Now, these aren’t evil people who are putting questions on here. They’re just well-intentioned people who say now, I’ve got an idea. I’d like to know this. They don’t think about the fact that 20 million people have to fill this out.

The problem with this is a couple of obvious things. One is it wastes time and money. But the other problem is it discourages people from going to college who we’d like to have go.

The President of Southwest Community College in Memphis said he thinks he loses 1,500 students each semester because of the complexity of the form.

Tennessee has become the first state to make community college tuition free for qualifying students, but first every applicant must fill out that FAFSA. Now that tuition is free, the principle obstacle to a Tennessee high school senior going to community college is a federal, complicated set of regulations.

The third example: Ten years ago and again three years ago, surveys by the National Academy of Sciences – not the Republican National Committee, the National Academy of Sciences—found that principle investigators spend 42 percent of their time associated with federal research projects on administrative tasks instead of research.

I then asked the head of the National Academies what a reasonable period of time would be for a researcher to spend on administrative tasks. He said, well, maybe about 10 percent.

Now, think about how many billions we could save.

We, taxpayers give NIH $30 billion a year, $24 billion to research and development at colleges and universities.

The President has asked for another billion for NIH research. The Republican House has said let’s make it $2 billion more every year.

But, the average annual cost of NIH research projects ‎is $480,000, and if we reduce spending on unnecessary red tape by $1 billion, we could potentially fund a thousand multi-year grants.

24 of the 30 billion dollars that goes to NIH goes to university-based research. At the moment, 42% of an investigator’s time is spent on administrative tasks.

This piling up of regulations is one of the greatest obstacles to innovation and cost consciousness in higher education has become—and the reason is us, the federal government.

So if all of us created the mess, then it is up to all of us to fix it.

We’ve begun to do that.

Here’s the good news: On the senate education committee, which I chair, there is a bipartisan effort to examine these regulations – to identify which ones are the problems, and see if we can get rid of them or simplify them.

More than a year ago, four members of the committee—Senator Mikulski and Senator Bennet, two Democrats, and Senator Burr and I, two Republicans—asked a group of distinguished educators to examine the federal rules and regulations for colleges and universities.  They returned to us a document with 59 specific recommendations—requirements and areas for Congress and the Department of Education to consider —including 10 that were especially problematic. They told us that the colleges and universities were operating, in their words, in a “jungle of red tape.”

I had a letter from a university president in Missouri who said that in his forty years of being in higher education, he had never been so oppressed by regulations.

Most of these are common-sensical things; for example, in our proposal to fix the student aid form, we suggest that students apply for student aid in their junior year in high school instead of their senior year.

Now, why does that make so much difference?

Well, one is if you know in your junior year, you’re going to get this much in a Pell grant and this much in a loan, you can shop around and know where you’re going.

Right now, you don’t know the amount of money you’ll get until after you’re already enrolled in the school. So, that doesn’t make any sense. In addition, you’re asked in your senior year, which is the current way they do it, to report what your tax returns showed. Well, you haven’t filed your tax returns yet for that year.

So, there’s all sorts of unnecessary confusion, which could be solved by just moving the application time from the senior year in high school to the junior year.

The other area is regulatory guidance. Now, this is the kind of subject that usually puts people right to sleep – unless you’re a victim of it—but we see the ugly effects of government overreach.

It’s very hard to pass a law in this country for good reason.

Our revolution was against a king. We chose to be represented by an elected Congress. They’re the ones who are supposed to make the laws. Our Constitution makes it pretty hard to pass a law.

In some of our laws, Congress delegates some of the details of how to implement the laws to federal agencies – but it does it with specific requirements: Before those rules come out, the people who are governed have a chance to have a say. That’s called notice and comment before you have a federal regulation.

Well, what’s happening today is some of these agencies are using something called guidance to get around that requirement, to use the guidance as a non-binding way to tell the people. It’s supposed to be a non-binding way of suggesting to people how to follow regulations that are properly in place, but what the agencies are doing is using the guidance to make new laws.

For example, I asked the assistant secretary for Civil Rights at the U.S. Department of Education last year, whether she expects our more than 6,000 colleges and universities to comply with her agency’s guidance – these are issued without any sort of notice or comment.

She answered, “We do.”

So her agency is writing detailed guidance governing 22 million students on 7,200 campuses and it could be some individual’s whim or idea.

How frequent is this? The distinguished group of educators led by the Vanderbilt Chancellor and the University of Maryland Chancellor who recommended the 59 changes in regulations that I talked about said that every single work day, on average, there’s a new guidance or rule from the U.S. Department of Education to a college and university.

So, here you are operating with federal grants and loans at a Catholic college out in the Midwest, and you know every single day something’s going to change from Washington about what you’re doing.

It’s very important that Congress make the law. It’s very important because Congress answers to the people. That’s the way our government ought to work.

When Congress isn’t doing its job, the people can throw the bums out. It is very hard for the voters to do that to an unelected bureaucrat, say in the Civil Rights office at the U.S. Department of Education.

So, I’m about to begin a project with one of our outstanding new senators, James Lankford of Oklahoma, to examine whether agencies are abusing guidance and how to solve that problem.

Thank you for inviting me here to speak to you today about this burr that’s been in my saddle for a long, long time.

I think that what you are trying to achieve here today is one of the most important things we can do in Washington – because as hard as it is to pass a law, it is almost harder to end one.

Probably the most famous comment about that came from Ronald Reagan who said: “No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!”

Well, at least once or twice, I’d like to prove him wrong.

Thank you very much.

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