“Executive agencies can virtually legislate at will.” – Rep. Geoff Davis (R-Ky.)
The current Congress has held dozens of hearings on the effects of regulation. Nearly all of these hearings have been overly negative and one-sided, with the majority of members’ and witnesses’ time dedicated to discussion of the perceived costs of regulations for industry, with little or no mention of the life-saving benefits for people. Among the tropes that appear in statements by opponents of regulation is the assertion that the regulatory process is out of control—that agency personnel are run amok and issuing rules at a breakneck pace, with no time for review or input from affected parties. The above quote by Rep. Davis, the chief sponsor of a bill that would require Congress to vote on all new major regulations before they could go into effect, epitomizes this attack.
Nothing could be further from the truth. In fact, the regulatory process is a laborious, nearly Sisyphean struggle to complete a rule in spite of numerous constraints placed on agencies by Congress and the President. Indeed, rather than regulating too quickly, agencies promulgate regulations very slowly, with rulemakings typically lasting several years or longer. As agencies struggle to complete rigorous analyses with limited resources, they do so in a race against time: a change in Congress or the White House could stop a rule in its tracks and moot years of research and analysis.
Why is the regulatory process so tortuous? Because the statutes and executive orders that govern rulemakings require agencies to give industry, other agencies, Congress, and the public multiple opportunities to shape the rule before it goes into effect. Public input on the formulation of rules is welcome and desirable, but the analysis, reviews, and panels that are required of agencies also delay the creation and implementation of rules on workplace safety, lead standards for childrens’ products, and restrictions on predatory lending. In recent years, Congress and previous presidents have required agencies to give more consideration of industry interests; some agencies, for instance, are required to convene a panel of business interests to discuss the rule before it is even available to the public for review and comment. Agencies must also perform several cost-benefit analyses on the proposed rule, and alternatives to the rule, at different stages of the rulemaking process.
Not satisfied with these requirements, Congress and industry groups are pushing for more onerous requirements to be placed on agencies. Legislation has been offered that would require all agencies to convene panels of business interests to give them a first shot at weakening a rule before it became public. Other legislation would require cost-benefit analysis of any regulation that might have some indirect impact on a business, even if the rule itself would not directly regulate a business. Theoretically, this could require an agency considering a rule that would ban a toxic chemical to consider whether this rule would adversely affect manufacturers of toxic chemicals.
The most egregious bill under consideration by Congress is Rep. Davis’ Regulations from the Executive in Need of Scrutiny (REINS) Act. If enacted, this bill would require Congress to vote on every major regulation issued by agencies. If Congress does not approve the rule within 70 days, the rule is nullified. Even a casual observer of Congress would recognize that it is very difficult for Congress to do anything in 70 days. The REINS Act would effectively become a pocket veto of all major regulations, negating years of work by an agency, wasting taxpayers’ money, and leaving the public in danger.
To illustrate the complexities of the regulatory process, Public Citizen has prepared a graphic [PDF] showing the typical rulemaking procedure. As Congress and industry groups continue their assault on regulations, we urge them to familiarize themselves with the regulatory process they seek to alter. They will find that the process is careful, deliberative, and democratic.