Federal guidance in the shadows gets called out for scrutiny, with CEI advocating for transparency and accountability via the GOOD Act
The Guidance Out of Darkness (GOOD) Act, a bipartisan legislation, has been presented to the Senate by the Republican Party, marking its return in the current legislative period. This proposed bill aims to increase transparency of federal guidance documents, a issue that has been gaining significant attention in recent years.
The GOOD Act is seen as a prerequisite for any further action Congress might take to address the issue of regulatory dark matter. This 'dark matter' refers to the numerous interpretive rules, policy statements, memoranda, FAQs, circulars, and other guidance documents issued annually by federal agencies, which often go unnoticed by Congress and the public.
If passed, the GOOD Act would require these agencies to post their guidance documents online in a centralized, accessible manner. This would bring into daylight the thousands of such documents that are currently hidden, helping to ensure that these interventions are not going unnoticed.
The GOOD Act has been commended for its bipartisan, commonsense reform. It has been supported on a bipartisan basis in prior Congresses, and it recently passed the House of Representatives. The bill's proponents argue that it is crucial for ensuring future administrations cannot govern through opaque and unaccountable 'pen-and-phone' directives.
The bill is also important in light of recent federal spending programs, such as the Infrastructure Investment and Jobs Act, the Inflation Reduction Act, and the CHIPS and Science Act. These programs are expected to produce new flows of guidance, contract clauses, and policy statements, making transparency more important than ever.
The GOOD Act would not only make these documents more accessible but also restore and codify transparency requirements, making them durable and less subject to administrative whim. This is particularly important as these guidance documents are frequently suspected of being employed to achieve policy objectives outside the notice-and-comment process required under the Administrative Procedure Act.
President Trump issued an Executive Order in October 2019 requiring executive agencies to create searchable, indexed databases of all their guidance documents. However, this reform was repealed by the Biden administration. The GOOD Act aims to permanently institutionalize transparency over regulatory dark matter.
The Competitive Enterprise Institute has urged the Senate to pass the GOOD Act again, emphasizing its importance in promoting transparency and accountability in government. They have also urged the advancement of the bill to the full Senate.
As the GOOD Act moves forward in the Senate, it is hoped that it will help bring a much-needed level of transparency to the federal guidance process, ensuring that Congress and the public can effectively oversee and participate in the rule-making process.
