A draft of the Republican party platform, posted by Politico on Friday afternoon, reveals that the party has incorporated some of the more absurd claims and proposals on regulations pushed by House Republicans and some more radical trade organizations.
The draft claims regulations cost $1.75 trillion each year – that’s from a discredited study sponsored by the Small Business Administration’s Office of Advocacy. It turned out that 70 percent of that figure came from a regression analysis based on opinion polling on perceived regulatory climate in different countries (and much of the rest of the number came from cherry-picking the highest available estimates). The SBA study was debunked by a CPR white paper, the non-partisan Congressional Research Service, and the Economic Policy Institute (twice).
The draft platform says: “Constructive regulation should be a helpful guide, not a punitive threat.” In other words, we suggest that you don’t poison your neighbors, but won’t do anything if you do – not quite a get-tough-on-crime message. And in reality, the punitive threats of even our existing rules are often simply too meager: if an employee’s death is caused by the willful violation of an OSHA requirement, for example, the maximum civil fine for the employer is $70,000. We have learned the hard way that that is not enough to deter many employers from breaking the rules.
The regulations section ends with this: “We call for a moratorium on the development of any new major and costly regulations until a Republican Administration reviews existing rules to ensure that they have a sound basis in science and will be cost-effective.” Now, telling the Obama administration – particularly if the President is reelected – that it can’t regulate until a Republican president approves – that’s quite a platform plank!
Full textGovernor Romney claims that burdensome regulations are an immense but hidden tax holding back the American economy. As proof for this proposition, he cites the study on regulatory costs sponsored by the Small Business Administration – a study that’s been debunked by a CPR white paper, the Congressional Research Service, and others. Romney lays out some solutions to this supposed problem in Believe in America: Mitt Romney’s Plan for Jobs and Economic Growth, issued in September of last year. One of these ideas is to require affirmative congressional approval of all major rules.
People who drop by CPR’s website likely know that Republicans have already tried to pass legislation to this effect in the form of the Regulations from the Executive in Need of Scrutiny (REINS) Act. The bill passed the House in late 2011, but has gone nowhere in the Senate. Proponents of the REINS Act like to cast it as a matter of legislative accountability, but the real impetus behind this proposed legislation is to block agencies from regulating by entrusting the fate of rules to a Congress where anti-regulatory forces will likely control at least one choke point. The REINS Act itself, however, can only devastate regulation if it becomes law, and this will probably happen only if the Republicans retain the House, grab the Senate and defang the filibuster, and seize the Presidency. Governor Romney has therefore made alternative arrangements. In his plan, he promises, if elected, to issue an executive order requiring agencies to “invite Congress to vote up or down” on major rules and forbidding agencies from promulgating them without affirmative congressional approval (page 63). Let’s call this proposal REINS-lite.
Full textThe White House today announced the departure of Cass Sunstein, Administrator of the White House Office of Information and Regulatory Affairs. CPR President Rena Steinzor issued the following statement:
Cass Sunstein brought impressive credentials and a personal relationship with the President to his job as Administrator of the Office of Information and Regulatory Affairs. But in the final analysis, Sunstein has continued the Bush Administration’s tradition of using the office to block needed health and safety protections disliked by big business and political contributors. Worse, the narrative that Sunstein helped craft about the impact of regulations on American life — that regulatory safeguards are fundamentally suspect — was discordant with the rest of the President's agenda and the arguments he makes for his reelection.
Sunstein’s departure is an opportunity for the Administration to reset its regulatory policy and embrace public health and safety protections that have long been stalled in the White House. But the President first needs to rethink what he wants from OIRA and its administrator. The middle of a presidential campaign is a lousy time to do that. Sending a nominee into the mosh pit of a Senate confirmation hearing right now would do nothing to advance the cause of a progressive regulatory agenda. The President should take his time and find an Administrator dedicated to protecting the public. Allowing OIRA to serve on behalf of the White House as the last refuge for disgruntled polluters, Wall Street speculators, and producers of tainted food will not prevent the inevitable next wave of health and safety disasters, killing and injuring refinery workers, miners, children who labor in the fields, and the environment of the Gulf coast.
Full textTalk about trying to fix the wrong problem: Senators Mark Warner, Rob Portman, and Susan Collins have introduced a bill today that seeks to move the rulemaking process further away from agency experts and transparency and more toward hidden corners of the White House, where well-heeled industries can buy access and push political operatives to block rules.
The bill at hand is the Independent Agency Regulatory Analysis Act. In a press release and accompanying fact sheet today, the senatorial trio – one conservative Democrat, one potential Republican VP nominee, and a once-moderate Republican who has changed her stripes – boast how the bill seeks to bring the “independent agencies” under the purview of the White House. Those agencies include the Securities and Exchange Commission (SEC) and the new Consumer Financial Protection Bureau, both of which have great potential to exasperate the big bankers and security brokers who bankroll elections at both ends of Pennsylvania Avenue.
Congress created independent agencies exactly so that they’d have some room to resist presidential political meddling. Subjecting these agencies to Executive Order requirements – especially oversight by the Office of Information and Regulatory Affairs (OIRA), which is without question the most potent conduit for presidential influence over new rules – defeats the whole point of making the agencies independent at the outset. Congress wanted these agencies to be able to use their unique expertise on policy matters to develop the best solutions to the social problems that Congress created them to address.
Full textThe White House’s message on its program for retrospectively reviewing existing regulations just shifted a little further away from recognizing the need for protective regulations for health, safety, and the environment. First the White House said it was interested in "expanding" certain existing regulations, if appropriate. Then it said it was interested in hearing ideas from the public on expanding regulations, but officially considers those ideas to be a lower priority than ideas that would weaken regulations. Now today, a new website launched by the White House pushes the notion of any balance in regulatory review further off the table.
Let me step back. Executive Order 13,563, issued by President Obama in January of 2011, announced the regulatory look-back program we’ve discussed a lot here:
To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.
A key word there was expand. If agencies were to divert some of their current staff from working on needed new public protections to re-evaluate existing ones (the White House has never sought, let alone received, any new funding for the look-back programs at the agencies), at least it might, in theory, be a somewhat balanced exercise that could identify needed expansions to existing rules. Cass Sunstein, the Administrator of OIRA, has himself publicly noted the importance of the word “expand.” The process, we hoped, might not be simply weakening existing rules.
Full textIn a case that could have far reaching implications for agencies subject to the Regulatory Flexibility Act, the D.C. Circuit Court last month held that an EPA decision not to convene a small business advocacy review panel before issuing a rule was not judicially reviewable. The decision by Judge Merrick Garland, for a unanimous 3-judge panel, was in National Association of Home Builders (NAHB) v. EPA.
NAHB challenged the EPA’s change of course on an “opt-out” provision of a rule established under the Residential Lead-Based Paint Hazard Reduction Act. With the goal of protecting thousands of children from lead poisoning associated with older homes, the rule mandated that renovators of housing built before 1978 take certain steps to mitigate the dangers from lead paint. The opt-out provision would allow an owner-occupant of housing without children under the age of six or pregnant women to waive protections afforded by the rule. Two years after first creating the opt-out provision, the EPA, hearing criticism from environmental health advocates, reconsidered the harm the opt-out could cause to children and pregnant women, and chose to rescind it. The agency did so relying solely on the evidence that was available when the opt-out provision was enacted, but now applying that evidence to better fulfill the governing statute’s directives. As Judge Garland put it, the EPA simply “change[d] its mind.”
Among other things, the NAHB argued that the EPA’s change of course violated the Regulatory Flexibility Act (RFA) because the agency did not convene a small business advocacy review panel. The RFA § 609(b) stipulates that an agency must convene such a panel in connection with the initial flexibility analysis that is mandated each time a new rule is promulgated.
Full textCross-posted from Legal Planet.
The Romney website portrays regulation as a huge drag on the economy. But it can’t decide who’s to blame. Is it all Obama’s fault? Or not just Obama, but a whole succession of Presidents, many of them presumably Republicans? Or is it bureaucrats who have overpowered all of these Presidents? The website goes around in circles, embracing each of these theories even though they contradict each other.
The website begins by placing the blame on developments during successive Presidencies — presumably that includes at least Obama and Bush, since “successive” implies at least two in a row. (Poor W, now taking the rap for having a pro-regulation Administration!)
But the website has another theory, too, which contradicts the first one. According to this second theory, the problem isn’t caused by Presidents at all, not even Obama. Instead, the root of the problem is that “federal agencies today have near plenary power to issue whatever regulations they see fit” with “little or no presidential oversight.” Presidents aren’t really to blame, then.
But the website doesn’t stick to this theory. It says that the worst example of bad regulation is the “Obama administration’s war on carbon dioxide.” Note that now it’s Obama’s fault, not the bureaucracy’s.
Full textLast week, The Washington Post ran a story about regulation, headlined, "Regulators surge in numbers while overseers shrink." The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes:
As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and Democratic administrations during the past 30 years.
Yesterday, the Columbia Journalism Review dismantled the story's premise in the kind of takedown that ought to prompt the Post not just to run a correction, but to reconsider the way it reviews future Bloomberg stories on the subject before it prints them.
The takedown comes from Ryan Chittum, writing for CJR's "The Audit on the Business Press." Its headline also tells the tale: "Inflating the regulatory state: TSA and border security account for almost half of the increase in the regulatory staff since 1980."
Chittum writes:
Full textThe regulatory bureaucracy has ballooned? That doesn’t sound right. The federal workforce, after all, is down over the last 40-plus years, and places like OSHA are shadows of their former selves.
Cross-posted from Georgetown Law Faculty Blog.
Despite initial signs suggesting a different path, the Obama Administration has promoted the role of cost-benefit analysis in regulatory policy as fiercely as any administration before it. Nothing demonstrates this more clearly, I think, than the Administration’s bizarre and unfortunate decision to apply cost-benefit analysis to measures to limit rape and sexual abuse.
Last month, the Department of Justice issued a final rule on rape and sexual abuse in confinement facilities. The rule was required by the Prison Rape Elimination Act ("PREA"), a law passed by a unanimous Congress and signed by President George W. Bush. In PREA, Congress directed DOJ to set national standards to prevent, detect, and respond to rape and other forms of sexual abuse in federal, state, and local confinement facilities. PREA did not say that DOJ should do a cost-benefit analysis to decide whether actions to prevent, detect, and respond to rape and sexual abuse in prison are worth it. On the contrary, the only limit that Congress placed on DOJ's national standards was that the standards were not to impose "substantial additional costs" beyond the present expenditures of the covered facilities. In its final rule setting the national standards called for by PREA, DOJ easily found that its standards complied with this statutory constraint. In three quick sentences, DOJ found that even full compliance with DOJ's standards would increase total expenditures by less than 1 percent and that this additional expenditure did not exceed the statutory limit of "substantial additional costs."
Nevertheless, under an Executive Order issued by President Obama in January 2011, and one issued by President Clinton in 1993 and embraced by Presidents Bush and Obama, DOJ went on to determine whether the benefits of its rule were justified by the costs. In its 168-page Regulatory Impact Analysis, DOJ treats the reader to a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse.
Full textLast December, the Federal Aviation Administration (FAA) finalized a new aviation safety rule designed to prevent excessive pilot fatigue, a problem that had contributed to at least one high-profile airline disaster—the Colgan Air Flight 3407 crash near Buffalo, New York, in February of 2009, which killed 50 and injured four—as well as to a disturbing series of mishaps and “near misses.”
It turns out that the rule took a mid-flight detour on its journey from proposal to final form, and that the way in which it was weakened along the way is a textbook example of how the White House Office of Information and Regulatory Affairs manages, at the behest of industry, to override the plain meaning of statutes requiring regulation. The proposal, issued for public comment in September 2010, covered cargo-only pilots as well as passenger pilots. That made a certain sense, because while cargo-only pilots don't carry as many passengers, they're still flying big aircraft, the safe operation of which requires an attentive pilot. But when the final rule came out in December, cargo-only pilots were exempted. In their comments, some members of the cargo-only airline industry had suggested that the FAA amend the proposal to include this exemption, arguing that the costs of the rule outweighed the benefits of preventing all-cargo planes from crashing. According to the draft final rule, however, the FAA had rejected this suggestion.
If the public comments hadn’t persuaded the FAA that an exemption for all-cargo pilots was appropriate, then what could have changed the agency’s mind at the last minute? A close review of the record reveals that the rule was weakened at the behest of the OIRA. A red-lined version of the final rule showing all the changes that had been made to the draft while it was under OIRA review confirms that this exemption was added during OIRA's review process. What’s more, the red-lined version shows that OIRA directed the FAA to include new language in the rule’s preamble justifying this change solely on the basis of cost-benefit analysis, with clear disregard for applicable law and relevant science.
A little background is in order. In 2010, following the Colgan Air disaster, Congress passed the Airline Safety and Federal Aviation Administration Extension Act. In the disaster’s aftermath, investigators attributed the crash primarily to pilot error arising from excessive fatigue; regional pilots, such as those employed by Colgan Air, frequently log long, irregular hours with inadequate time in between shifts to rest properly. The new legislation directed the FAA to take several steps to prevent future fatigue-related plane disasters, including issuing a new regulation establishing maximum flight and duty times for pilots and other flight crew members as well as minimum rest periods between shifts. Significantly, Congress directed the FAA to base these new regulations on the “best available science information” related to fatigue and human sleep requirements.
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