August 01, 2012

The Independent Agency Regulatory Analysis Act, as Critiqued by Co-Sponsor Susan Collins and Me

Talk 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.

The Senators actually tout the bill as bringing accountability and transparency, but it would bring more of the opposite. The part of rulemaking that is least transparent, and most susceptible to industry domination, is OIRA review – exactly the part that the Senators wish to extend today.  (for more on OIRA, see: Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety and the Environment).

But you don’t have to take my word on the need for independent agencies to be independent. On May 12, 2009, at the confirmation hearing for OIRA Administrator Cass Sunstein, Susan Collins herself made an articulate argument against bringing independent agency rulemaking under the White House’s purview. Here’s what the Senator had to say (at 57:53):

“Let me turn to another issue that concerns me. You have recommended that the process of regulatory review that OIRA undertakes should be broadened to include independent agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Consumer Product Safety Commission. That recommendation concerns me greatly, because the whole reason that Congress creates independent regulatory agencies is to insulate them from administration policies, whether it’s a Democratic or Republican administration. Congress has deemed that this particular area needs to be protected from the changing agendas of different administrations.  If you bring these independent agencies within the regulatory purview of OIRA, you defeat the whole purpose of having them be independent agencies. You’re treating them as if they’re members of the governor’s cabinet. So, why do you advocate expanding OIRA’s reach to independent agencies?”

It’s a good question for the three Senators today.

Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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