January 14, 2011

The REINS Act: The Latest Conservative Plan to Gum Up the Regulatory Works

Republican legislators have been scheming for years about ways that they can slow down, if not stop, needed health, safety and environmental regulations. But their latest effort, though creative, is perhaps their most ill-conceived. They’re calling it   “The REINS Act” (in the last Congress, H.R. 3765 sponsored by Rep. Geoff Davis (R-KY), S. 3826 sponsored by Sen. Jim DeMint (R-SC)), and, if adopted,  no new "economically significant" regulations would take effect unless affirmatively approved by Congress, by means of a joint congressional resolution of approval, signed by the President.  The proposal is a genuinely radical departure, plainly designed to gum up the regulatory works. Republicans have promised to hold congressional hearings on the bill early this year.

The REINS Act would make Congress the final arbiter of all significant regulatory decisions. While superficially this may seem like a good idea – after all, Members of Congress are elected and regulators are not – the REINS Act would replace what is good about agency rulemaking with what is bad about the legislative process. Neither Members of Congress nor their staffs are likely to have sufficient scientific, engineering and economic expertise regarding complex regulations. And, unlike agencies, Congress does not have to have good policy reasons for refusing to approve a regulation. Instead, the approval process is likely to be nakedly political, reflecting the raw political power of special interests and the large campaign donations that they give.  Since agency rules are subject to judicial review, the federal courts ensure that regulations are backed up by reasonable policy justifications and are consistent with the statutes passed by Congress. 

The legislation also stacks Congress’s procedural deck against approval of regulations. Since the bill does not clearly prohibit a filibuster in the Senate, it would empower a few, or even one Senator, to block regulations. Moreover, under the terms of the bill, Congress has only a 90-day window to approve a regulation, and if both houses fails to do so during that time period, the regulation is deemed to have been rejected, and Congress is barred from subsequently voting to approve the regulation or one “substantially similar” to it for the remainder of that Congress. The 90-day requirement is a particularly high hurdle indeed in the United States Senate, a body where even legislation popular on both sides of the aisle can easily get bogged down.

Arguably such radical action might be necessary if regulatory agencies were wildly out of control. But they are hemmed in by numerous political and legal constraints. They must comply with the Administrative Procedure Act, which requires them to solicit comments from affected parties and the public, and they must respond to those comments. Drafts of those regulatory proposals are commonly vetted by the White House Office of Information and Regulatory Affairs (OIRA), which has often served as an additional venue for industry to dilute or block needed regulations. Once agencies issue final regulations, Congress has a fast-track opportunity to block them under the Congressional Review Act (passed in 1996). Thus, under current law, by the time a regulation is finally adopted, two and usually all three branches of government have weighed in, and advocates on all sides of the relevant issues have ample opportunity to affect the outcome.

The conservative rhetoric about “job-killing” regulations that is now bouncing around the right-wing media echo chamber is offered up as the chief rationale  for the REINS Act, but the claims are baseless, a reiteration of the same doomsday rhetoric that conservatives have used to oppose virtually every major step forward for health, safety, and the environment. The REINS Act isn’t about helping the economy; it’s about giving industry allies an additional opportunity to kill regulations they find inconvenient. One assumes they’re wrapping it up in pro-jobs rhetoric because they’re pretty sure they can’t sell the notion that paring back regulations protecting the safety of the food supply, or protecting workers from unreasonable hazards on the job, won’t sell. And for bonus points, it serves as a rationale for why the recession that began on George Bush’s watch is really President Obama’s fault.

At least for now, the proposal, like other provisions in the Pledge to America, is more rhetoric than reality. The bill is currently supported only by conservative Members of Congress, and would not get past an Obama veto. But its inclusion in the platform today suggests a larger and longer attack on regulation somewhere down the road.

For a more thorough examination of the bill, see my Backgrounder on the Reins Act.

Sidney Shapiro, CPR Member Scholar; Fletcher Chair in Admin Law, Wake Forest University School of Law. Bio.

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1 If I was elected to Congress I would have countered Congressman Davis’s “Regulations from the Executive in Need of Scrutiny (REINS) Act” with my own Act (RUINS) “Regulations from the Unemployed in Need of Security (Jobs) Act”.
-- Ed Marksberry

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