Call to Action:

Please call your U.S. Senators, especially Democratic Senators up for reelection in 2018. Find your Senator at WhoIsMyRepresentative.com

Suggested Script: My name is _____________ and I am a constituent. I strongly oppose so-called "regulatory reform" bills that would effectively paralyze the EPA and other federal agencies from passing regulations to protect my health, safety and welfare. Koch Industries and other corporate interests support these bills because they would further delay a rulemaking process that already takes years to complete, and make it easier for special interest groups to block regulations in court before they take effect. Does Senator _____ intend to stand with other Democratic Senators in filibustering against these harmful bills?

Background:

Since the New Deal, Congress has entrusted federal agencies to write regulations to promote the public interest on subject matter considered too fluid or complex for ordinary legislation. For example, regulations drafted by the Food and Drug Administration ensure that the medicine we consume is safe, while regulations passed by the Environmental Protection Agency ensure that the air we breathe or the water we drink is acceptably clean. While regulations can impose costs on particular industries, the benefits of regulation for ordinary Americans (workers, consumers, student borrowers, etc.) and the economy as a whole typically dwarf the costs.

Unsurprisingly, Republicans and their corporate donors have long decried the rise of the so-called "administrative state." After years of successful obstructionism in Congress, Republicans expressed outrage when President Obama encouraged federal agencies to pursue progressive policy reforms through the rulemaking process in his second term. Important regulations finalized in recent years include a net neutrality rule promulgated by the FCC, an EPA rule to reduce carbon pollution from power plants, and a Department of Labor rule expanding the right to overtime pay to millions of salaried workers earning less than $47,476 per year. While some of these regulations have been successfully implemented, others remain tied up on ongoing litigation and face an uncertain future under President Trump.

Unfortunately, the election of Donald Trump has given Republicans an opportunity to introduce "reforms" to the already-cumbersome process that agencies must follow when issuing new regulations. Much attention has been paid to President Trump's legally dubious executive order that arbitrarily requires federal agencies to repeal two existing regulations for each new regulation they adopt, but several Republican-sponsored bills currently pending in Congress pose a far more permanent threat to ability of agencies to pass effective regulations going forward.

The worst of the bunch is a bill long supported by Koch Industries and affiliated groups, the "Regulations from the Executive in Need of Scrutiny" or "REINS" Act of 2017, H.R. 26. Under the REINS Act, no agency could issue a new regulation unless it first amended or repealed one or more existing regulations "to completely offset any annual costs of the new rule to the American economy," irrespective of whatever benefits the new or existing regulations provide. This means, for example, that a proposed safety regulation that would impose $10 million in compliance costs for regulated entities would have to be offset by somehow reducing at least $10 million in compliance costs from other existing safety regulations, even if the new regulation would benefit consumers by saving an estimated $40 million dollars in lost wages and health care expenses. The REINS Act would also require Congressional approval before any "major rule" – i.e., a rule that imposes at least $100 million in costs – could take effect.

The other major bill to worry about is the Regulatory Accountability Act, H.R. 5, which enjoys support from the U.S. Chamber of Commerce and other powerful business interests. That bill introduces a myriad of new procedural hurdles for agencies to overcome before finalizing new regulations, and would generally require federal agencies to adopt the "least costly" option addressing the problem the agency intends to fix. Most radically, the Regulatory Accountability Act includes two provisions that would assist businesses attempting to block a pending regulation through litigation: a mandatory nationwide stay in response to any lawsuit against a "high-impact" rule, and elimination of the deference that courts have historically extended to agency interpretations of their own rulemaking authority.

The other four bills under consideration are less extreme, but all share the characteristic of offering solutions in search of a problem. Federal agencies have always been directed to evaluate the necessity of their existing regulations, so they don't need a politicized nine-member commission like the one contemplated by the "SCRUB" Act, H.R. 998, to do it for them. Given the disproportionate influence anti-regulation lobbying groups wield in the rulemaking process, it is unclear why agencies need to be restricted in how they raise awareness about their proposed regulations in press releases or social media posts, as the Regulatory Integrity Act, H.R. 1004, would do.

Fortunately, none of these regulatory reform bills can become law unless Republicans find 60 votes to overcome a Democratic filibuster in the U.S. Senate. In addition to the 52 Republicans, Sen. Claire McCaskill (D-MO), Heidi Heitkamp (D-SD), Joe Manchin (D-WV) and Angus King (I-ME) have indicated interest in passing regulatory reform in the past, so the final tally for one or more of these pending bills will be close.

Despite everything else going on, progressives cannot afford to be complacent about one of the fundamental ways agencies seek to protect the health, safety and welfare of the American people. We need to make sure that at least 41 Senators in the U.S. Senate will stand up for strong regulations and good governance by rejecting these cynically one-side "reform" bills.

A brief description of the six regulatory reform bills pending in Congress is provided below:

H.R. 5

Regulatory Accountability Act of 2017

●imposes onerous procedural requirements for "high impact" regulations (i.e., publication of an "advanced notice" followed by a 60-day comment period, then a 120-day comment period, then an in-person hearing following the end of the 120-day comment period)

●expands the ability for opponents to challenge proposed regulations for relying on inadequate evidence or information

●prohibits agencies from soliciting comments in support of proposed regulations, or otherwise engaging in "publicity or propaganda"

●requires agencies to choose the "least costly" regulatory option, rather than one that maximizes net benefits

●abolishes Chevron deference with "de novo" judicial review of agency regulations

●prevents "high impact" rules from taking effect until final disposition of all actions seeking judicial review of the rule

H.R. 21

Midnight Rules Relief Act of 2017

●allows Congress to veto any regulation or group of regulations issued during the final year of a Presidency by majority vote

H.R. 26

Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017

●requires agencies to completely offset the costs of any new regulations by amending or repealing existing regulations

●requires that Congress first pass a joint resolution to approve any "major rule" (i.e., those costing $100M or more) before the rule can take effect

●allows Congress to veto non-major rules by passing a joint resolution of disapproval

●requires agencies to identify 10 percent of existing "rules" for Congressional review, subject to repeal unless Congress passes a joint resolution of approving their continued existence

H.R. 998

Searching for and Cutting Regulations that are Unnecessarily Burdensome (SCRUB) Act of 2017

●creates a nine-member commission (split 5-4 in favor of the President's political party) to identify existing regulations for repeal

●requires agencies to fully offset the costs of any new regulation by repealing one or more existing regulations identified by the commission

●requires agencies to repeal regulations identified by the commission following a majority vote for repeal by Congress

H.R. 1004

Regulatory Integrity Act of 2017

●regulates "public communications" (including social media posts) that agencies can make about their proposed regulations

●prohibits agencies from soliciting comments in support of proposed regulations, or otherwise engaging in "publicity or propaganda"

H.R. 1009

OIRA Insight, Reform, and Accountability Act

●publicly discloses "all information" exchanged between federal agencies and the White House's Office of Information and Regulatory Affairs (OIRA)