Irresponsible Reform: The House Favors Extreme Legislation That Would Delay Public Protections by Ten Years or More

by Sidney Shapiro

January 13, 2015

Today, the House of Representatives voted to pass the Regulatory Accountability Act of 2015, which would amend the Administrative Procedure Act (APA) to add over 74 new procedural requirements to the rule-making process, including more than 29 new “documentation” requirements.  The goal of administrative procedure is to ensure that the government’s adoption of regulation is accountable and fair, but not at the expense of hamstringing the ability of agencies to fulfill the public interest.  The House obviously has no such concern.  Agencies already take four to eight years to promulgate any type of complex and controversial regulation, and the new requirements would add another two to three years or more to the process.  House Republicans voted today to delay clean air, clean water, safer workplaces, and less toxic products for their constituents. In addition, they have given Wall Street a green light to re-engage in behavior risky enough to collect enormous profits while taxpayers are left footing the bill for the inevitable devastating consequences.

Not surprisingly, the U.S. Chamber of Commerce announced its support for “modernizing” the APA.  While it is true that the APA has not been amended in any significant manner since 1947, the claim that it needs to be updated is entirely misleading.  First of all, the courts have added numerous procedural requirements as an interpretation of the APA.  In addition, Congress has passed several pieces of legislation that have added procedural requirements.  According to the best calculations available, agencies already must complete dozens and dozens of procedures in order to promulgate a rule to protect the public.  This is why it already takes a minimum of four to eight years to complete any type of complex and controversial protective rule. The idea that agencies can willy-nilly promulgate protective rules is ludicrous to administrative law scholars like myself.

It seems incredible that the House would like to make it more difficult—actually much more difficult—to pass protective rules, when the lack of regulation of Wall Street led to the collapse, not only of the US economy, but of the entire world’s economy.  There is no doubt that Wall Street is rooting for the passage of the legislation because it would make it even more difficult for the SEC and other financial security agencies to implement the Dodd-Frank legislation that Congress passed to prevent the economy from sinking yet again The SEC’s difficulties are typical.  Every agency faces an uphill challenge in completing protective rules.

No doubt it can be inconvenient for corporations to comply with protective rules.  This alone is enough to incite support by the House majority for the Regulatory Accountability Act.  But, as in three-card Monte, they are counting on the public having their eye on the wrong card.  Protective rules do not impose new costs on the economy; rather they re-allocate who pays the costs.  When an agency is unable to act because it is stalled by endless procedural requirements, the costs to society do not simply vanish in the air. Instead, those costs continue to be imposed on the general public, in terms of an economically-devastating recession, lives lost, preventable cancers, lost work-days, and more.  We pay, and the corporations who caused the problem have higher profits.  The Regulatory Accountability Act is not about government accountability; it’s about the allocation of who pays, with taxpayers ultimately footing the bill.

It’s telling that the newly-empowered Republican majority in Congress has made it its first order of business to protect the profits of its corporate benefactors at the expense of the public interest.  Make no mistake: the Regulatory Accountability Act is not about “good government,” but instead represents a brazen attempt to skew the rulemaking process so that it works to advance the interests of powerful businesses.  Unfortunately, it likely represents just the first volley in what is sure to be a long conservative campaign against public protections.

 

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Sidney A. Shapiro holds the Fletcher Chair in Administrative Law at the Wake Forest University School of Law and is the Associate Dean for Research and Development. He is a member of the board of directors of the Center for Progressive Reform.

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