Fresh from Congress’ successful use of the Congressional Review Act to undo 14 Obama-era regulations earlier in 2017, U.S. senators are taking further steps to reassert their constitutionally delegated responsibility for federal rulemaking.
On May 17, the Senate Homeland Security and Governmental Affairs Committee sent five bills to the full Senate that would reform how federal agencies implement rules and how such rules are finalized.
Among the proposals passed by the committee were the Midnight Rules Relief Act, the Regulations from the Executive in Need of Scrutiny Act (REINS), and the Regulatory Accountability Act (RAA).
The House of Representatives passed versions of each of these regulatory reform bills earlier in 2017.
Codifying, Scrutinizing, Approving Regulations
The Midnight Rules Relief Act would allow lawmakers to block rules by using the Congressional Review Act as a bundle rather than one rule at a time. Had this legislation already been law, Congress could have revoked hundreds of last-minute Obama-era regulations, rather than just the 14 it did reverse.
The REINS Act requires congressional approval of all new major regulations, defined as any regulation imposing $100 million or more in costs on the economy, before they may take effect. Under REINS, any major regulation not approved by a majority vote of Congress would be nullified.
RAA would modernize the 70-year-old Administrative Procedure Act by codifying several existing executive orders, including Executive Order 12866, signed by President Bill Clinton in 1993. EO 12866 mandates the benefits of any proposed rule must outweigh its costs. The bill calls for assessment of direct, indirect, and cumulative economic burdens for rules estimated to cost more than $100 million per year.
The bill would also require agencies to consider alternatives to any proposed rule; to rely on the best available scientific, technological, and economic information for proposed and final rules; and to hold public hearings on disputed factual issues.
The REINS Act and the Midnight Rules Relief Act passed out of committee on strictly party line votes with no Democratic support. Republican Sens. Rob Portman (R-OH) and Orrin Hatch (R-UT) joined Democrats Heidi Heitkamp (D-ND) and Jim Manchin (D-WV) in cosponsoring RAA.
Calls for More Reform
The American Action Forum (AAF) calculates the 14 rules blocked by Congress using the CRA since January will save government agencies more than $3.7 billion in regulatory costs and businesses more than $36.2 billion in compliance costs while eliminating 4.2 million hours of paperwork over the expected lifetime of the regulations.
Sam Batkins, AAF’s director of regulatory policy, says the bills under consideration are a good start, but with a national regulatory burden topping $1.9 trillion in 2016, there’s a long way to go.
“There were only three major rules having an economic impact of $100 million or more among the 14 rescinded via the CRA, so rescinding those measures alone won’t drive notable economic growth,” Batkins said. “I think Congress and the [Trump] administration view the CRA votes as just the first in a series of steps to enact a durable legacy of regulatory reform.”
Batkins says the bipartisan support for the Regulatory Accountability Act gives it the greatest promise for enactment among the packet of measures passed by the committee, although Senate filibuster rules mean even the bill would need six additional Democrats to approve allowing it to proceed to a full vote, assuming no Republicans vote against it.
‘Better Rulemaking Outcomes’
Emily Benavides, a spokeswoman for Portman, told Morning Consult RAA would promote better government.
“With better information and a little more time up front on the biggest rules, this bill will lead to better rulemaking outcomes that can withstand challenges in court, rather than spawn decades of litigation that we see now,” Benavides told the website.
Jeff Stier, a senior fellow at the National Center for Public Policy Research, lauds all the measures passed by the committee, saying such a wholesale overhaul transcends political parties, presidents, and special interests.
“It’s not so much about what Obama did or what the Trump regulators are going to do,” said Stier. “The executive branch can only regulate when Congress gives it the authority to regulate.
“With everything else going on in Congress, sometimes [Congress] gives broad regulatory power to the agencies, which often wind up doing something that was not intended by Congress,” Stier said.
Senate Rules Favor Status Quo
Stier says Congress has a tough time asserting itself due to the nature of the bicameral, two-party system and Senate rules, because having a simple majority in favor of reform is not enough to get it done.
“Ask [Wisconsin] Sen. Ron Johnson if he feels like his party is in control of the Senate,” Stier said. “No, when the Senate doesn’t have 60 votes, it’s hard for it to join with the House and get stuff done.”
This creates a vacuum for the executive branch to legislate through regulations, Stier says.
“It is very important Congress reassert its authority and say, ‘The executive branch cannot go at it alone,'” said Stier. “Even if Congress gives authority to agencies, that doesn’t mean the authority is without limits or oversight.
“Certainly, we rely on the agencies for expertise and to make decisions, but there must be better consultation with Congress, regardless of who’s in charge of it,” Stier said. “If there’s a Democrat in the White House, they still ought to work with the Republican Congress and vice versa. That’s good system, good process, but right now, we’re not getting it.”
Kathy Hoekstra ([email protected]) writes from Saginaw, Michigan.