Last week, the U.S. House of Representatives passed the REINS Act, a law designed to obstruct the enforcement of existing laws protecting Americans’ health and safety. If the REINS Act becomes law, this obstruction would take place through the blocking of new administrative rules, regardless of their merit, slowly breaking down the ability of federal agencies to respond to changing conditions.
Yesterday, the House increased its attack against responsive government protections by passing the H.R. 5, the Regulatory Accountability Act. The RAA is actually an amalgamation of several pieces of legislation crammed together to enable quick and easy passage without extensive public scrutiny for each individual bill. The constituent pieces of legislation hidden within the RAA are:
1) The Regulatory Accountability Act
2) the Separation of Powers Restoration Act
3) the Small Business Regulatory Flexibility Improvements Act
4) the Require Evaluation Before Implementing Executive Wishlists Act
5) the All Economic Regulations Are Transparent Act
6) the Providing Accountability Through Transparency Act
Accountability and transparency sound great in the abstract, but any one can slap these words into the title of a piece of legislation. What matters more is what the measures actually do, individually and collectively.
What administrative rules are isn’t understood by most Americans, but it’s vitally important in understanding legislation like the REINS Act and the RAA. These rules are drafted to protect American workers, children, communities, and the nation as a whole from things like dangerous products, toxic pollution, and hazardous workplace conditions. Think about the lead poisoning in Flint, Michigan, and you’ll get a good idea about why these rules are important.
Equally important to understand is that administrative rules are not Executive Branch abuses that seek to evade congressional lawmaking powers. In fact, the ability for agencies within the Executive Branch to create these rules was established by Congress. Administrative rules issued by federal agencies are merely the congressionally authorized mechanism for enactment of the legislation passed by Congress.
Without the ability to issue executive rules, the federal government would continue working for a while, but before long it would begin to fall apart, like a car that hasn’t had an oil change in a long while. This result seems to be the purpose of the REINS Act, the RAA, and similar legislation being rushed through Congress.
Part 1, the Regulatory Accountability Act (within the RAA) is designed to slow down the process of creating administrative rules. It adds new levels of bureaucratic report writing, hearings, legal guidance, judicial reviews, and petitions that must take place before a rule is issued – especially when that rule protects Americans from abuses by large corporations. Under the Regulatory Accountability Act, rules that restrain abusive practices by big businesses must be created more slowly than rules that relate to small businesses.
This part of the legislation also requires that agencies only pass the least expensive rules possible, rather than the rule that provides the best level of protection for American citizens. Expense, in the context of the RAA, is calculated with significant weight to the profits of powerful corporations. So, if a rule would protect American families and communities, but would require some expense on the part of big business, the rule would have to be scrapped in favor of a rule that provides relatively weak protections to Americans, but does not inconvenience big business.
This part of the legislation also states that, if an agency is unable to work its way through the substantial new hurdles and delays created by the RAA within a certain length of time, the rule will automatically be killed.
That length of time is 270 days. What makes 270 days the right amount of time after which to kill an administrative rule? U.S. Representative Hank Johnson has a theory. Speaking on the floor of the House during debate about the bill, Johnson said, “There is no reason given for that being the number of days, but that is what they give to the Office of Information and Regulatory Affairs, or OIRA, to issue guidelines pursuant to title I of this bill.Why 270 days? Well, I think I can answer that question. They know that OIRA is not equipped to sufficiently deal with regulations within that same amount of time period. We have had all this budget cutting going on. We have been attacking the Federal Government regulatory authorities throughout the entire 6 years that Republicans have been in control of this House. They have done 6 years’ worth of hobbling OIRA, and now they are going to come forward and impose a 270-day requirement. That is like asking someone who you have handicapped to run in a relay race that you know they can’t win.”
Part 2, the Separation of Powers Restoration Act, enables new legal challenges to administrative rules when the intent of Congress in the laws that authorized rulemaking activity is not clear. This move gives new weight to powerful corporate interests seeking to dismantle protections from dangerous working environments, pollution, and unsafe consumer products.
Part 3, the Small Business Regulatory Flexibility Improvements Act adds additional bureaucratic requirements, including new kinds of reports, interagency consultations, reviews, guidance, and an additional comment period. Together, these new bureaucratic requirements will further delay the rulemaking process, making it more likely that rules will be automatically killed under the time limit imposed by Part 1.
This part of the legislation also uses the cloak of small business to kill rules that mainly impact massive corporations, requiring economic analysis in the rulemaking process to include vague “indirect economic effect” that might take place in the future “without regard to whether small entities will be directly regulated by the rule”, even if there isn’t any concrete evidence that impact on small business is certain.
Part 4, the Require Evaluation Before Implementing Executive Wishlists Act, creates yet another hurdle that rules must overcome before they can go into effect. This part of the legislation requires that rules to protect Americans from dangerous materials and abusive corporations must be delayed until all judicial reviews brought in response to legal challenges are exhausted. That can take an extremely long time, and the automatic delay created under this part of the legislation encourages frivolous legal challenges by corporate lawyers just in order to stretch out the judicial review process.
Law Professor Dan Farber’s writes, in reaction to this part of the legislation, “The bill provides that no ‘high-impact rule’ can go into effect until the judicial review process is completely over. That’s a truly dumb idea, because it totally ignores the benefits of the regulation. Suppose the regulation is required because of a national emergency? Or suppose thousands of people will die in the meantime? Does the House really mean that it can’t go into effect so long as there is even one minor issue unresolved in any case brought against the rule, even if the case is completely groundless?”
Part 5, the All Economic Regulations Are Transparent Act, requires federal agencies to create yet another bureaucratic layer to the rulemaking process, with lengthy new monthly reports, replicating other reports about complicated legal and financial calculations, even when those reports have already been submitted in accord with other measures in the RAA. This part of the RAA also creates an extra 6-month delay after the creation of a rule, on top of all the other delays.
Part 6, the Providing Accountability Through Transparency Act, doesn’t do anything substantial to provide transparency in the rulemaking process. It doesn’t require corporations to provide any information about the involvement of their lobbyists in the crafting of rules, for example. That omission is especially troubling in the wake of Donald Trump’s declaration that he will not place his businesses in a blind trust during his presidency, but will keep full ownership while having his sons perform daily operations and make business deals on his behalf.
All that this portion of the RAA does is require a 100-word summary of proposed rules on a government web site. That’s a gimmick, not transparency.
Taken overall, the components of H.R. 5 follow a consistent pattern. They create delays and obstructions that, in combination with the provisions of the REINS Act, make it nearly impossible for any new rule to protect Americans from dangerous substances and working conditions to go into effect.
“While Republicans claim that the legislation is an effort to follow through on President-elect Donald Trump’s promise to ‘drain the swamp,’ it’s really quite the opposite,” writes Sean Colarossi of PoliticsUSA. What Colarossi means is that the Regulatory Accountability Act consistently favors large corporations over individuals and small businesses, insulating economically powerful business elites from accountability by crippling environmental and labor protections.
If the RAA becomes law, corporations will gain new leeway to pollute, to abuse, to cheat, and to cut corners, putting Americans in harm’s way for the sake of profit. Under this new pro-corporate system, government will become more bureaucratic and less transparent, allowing the imbalance of wealth to grow even more extreme.