The Real Nine Most Terrifying Words in the English Language

“I’m Republican, and I want to do regulatory reform.”  Whether they’ve uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at some point—if not on a near-daily basis—during the last few years.  Who could blame them?  The unshakable conviction that our regulatory system is broken and that gutting it is the key to its salvation is apparently one of the few areas where all the GOP’s members can find common ground.  Attacking the regulatory system has become a safe topic of conversation for conservatives—almost their version of “weather” small talk.  And not for nothing, they’re pretty confident it’s a political winner, too.

Witness this week, when both the House and the Senate have scheduled oversight hearings for the White House Office of Information and Regulatory Affairs (OIRA)—an obscure bureau with a direct political line to the Oval Office that is charged with reviewing agency regulations.  In practice, OIRA serves as the single most powerful antiregulatory force in the rulemaking process, translating the White House’s political calculations and intense lobbying behind closed doors from well-connected corporate interests into the delay, dilution, or death of pending regulations.  To my knowledge, both chambers of Congress have never scheduled two OIRA oversight hearings in the same week before.

CPR Member Scholar Noah Sachs is scheduled to testify at the hearing before the House Judiciary’s Subcommittee on Regulatory Reform, Commercial, and Antitrust Law today.  As he explains in his testimony, OIRA is arguably one of the greatest sources of dysfunction in the rulemaking process, working time and again to prevent agencies from carrying out their statutory missions of protecting people and the environment in an effective and expeditious manner.  Specifically, he writes:

Not only does OIRA review extend the length of time for rulemaking, but it also provides numerous opportunities for political interference with the content of the rule.  During OIRA review of agency regulations, industry lawyers and lobbyists use OIRA as a court of last resort to weaken or block pending regulations that have been vetted within the agency that promulgated them.

But, pay close attention to that hearing and to the Senate hearing that follows tomorrow, and you’ll hear a remarkable message from the Republican members in attendance:  OIRA isn’t introducing enough dysfunction into the rulemaking process.  “Why isn’t OIRA doing more to block and weaken rules,” they’ll ask OIRA Administrator Howard Shelanski, if perhaps not in those exact words.  “Why isn’t the lookback process that was established by the president’s Executive Order 13563 and that OIRA is charged with supervising more onerous and driving the repeal of more existing rules?”

Once the Republicans members are satisfied that OIRA is unwilling or unable to tie up the rulemaking process in red tape to their liking, expect them to use the two hearings to promote any of a number of legislative proposals that would add reams of red tape of their own.  Regular readers of this blog are no doubt familiar with the rogues’ gallery of legislative proposals offered by conservative members of Congress in recent years to “reform” or “modernize” or—perhaps most hilariously—“streamline” the regulatory process.  While their particulars may differ, they all share a common aim: to tie up agency rulemaking in unnecessary red tape.

Such proposals would only add to the extraordinary delays that already afflict the rulemaking process.  As Professor Sachs explains, it already takes anywhere between three and seven years—if not long longer—for agencies to complete significant rulemakings.  His testimony lays out what a “typical time schedule” for such rulemakings often looks like:

• 12 to 36 months to develop a proposed rule
• 3 months for OIRA review of the draft proposal
• 3 months for public comment
• 12 months to review comments and write final justification
• 3 months (or more) for OIRA review of the final rulemaking
• 2 months delay under the Congressional Review Act
• 12 to 36 months for judicial review (assuming a court stays the rule)

TOTAL: 47 to 95 months (3.9 to 7.9 years)

In anticipation of the two OIRA oversight hearings, CPR President Rob Verchick and I wrote letters to the Chairs and Ranking Members of the two subcommittees holding the hearings (Senate here; House here) to highlight three of the antiregulatory proposals that were likely to come up: (1) extending OIRA review authority to independent regulatory agencies; (2) codifying “one size fits all” regulatory “lookback” requirements; and (3) regulatory budgeting or regulatory “pay-go.”  As the letters explain, each of these proposals, if enacted, would “impair our agencies even more” and would “put the American public at risk.”

The inevitable consequence of introducing more dysfunction into the regulatory system will be more lives lost, ecosystems irreparably destroyed, illnesses not prevented, and money wasted.

Given the prevailing pattern of dysfunction that Republicans have brought to the legislative branch, perhaps it should come as no surprise that they are now seeking to export their unique brand of dysfunction to the executive branch as well.  As we’ve seen in recent years, Republican intransigence has prevented Congress from carrying out even its core obligations, including raising the debt ceiling, funding government agencies, and reauthorizing key programs, such as financing for transportation infrastructure.  Just last week, House Republicans were unable to even hold a final vote on Interior and Environment appropriations legislation that was little more than an anti-EPA messaging bill due to an internal party squabble over the Confederate Flag.  Now, Secretary of Transportation Anthony Foxx is warning that he will have to start rationing state highway reimbursement payments next month, because Republican leadership in the House and Senate cannot even muster a short-term extension of the Highway Trust Fund.

Under the circumstances, we would all do well to treat with a healthy dose of skepticism Republicans’ prescriptions for improving the performance of the regulatory system.  One dysfunctional branch of government is already one too many.