The Regulatory Accountability Act: Or How to Defeat the Public Interest in Just 65 Easy Steps

Cue the majestic fanfare, for this week marks House Republicans’ so-called “Stop Government Abuse Week”—you know they mean business, because they have a clever Twitter hashtag and everything.   So how does one celebrate such an auspicious occasion?  Apparently, by wasting precious House floor time with a series of votes on several extreme anti-regulatory bills that, if enacted, would make it all but impossible for agencies to carry out their congressionally mandated missions of safeguarding the public against corporate abuses.  The jewel in this potentially catastrophic crown is the Regulatory Accountability Act, which has been repackaged as Title II of the overstuffed “Regnibus” bill, officially known as the All Economic Regulations are Transparent (ALERT) Act (H.R. 2804). 

If enacted, the Regulatory Accountability Act would subject the Environmental Protection Agency, the Food and Drug Administration, the Consumer Product Safety Commission and all other protector agencies to as many as 65 new procedural and analytical requirements when developing new regulations to implement the laws they administer.   If an agency wants to issue a regulation that is not “least cost,” then they have to comply with still more new requirements.  See here: I counted them myself, so you wouldn’t have to.  (The law actually includes 75 such requirements, but 10 are identical or similar to existing requirements.)  These requirements would come on top of the dozens of analyses and procedures that agencies must already undertake throughout the rulemaking process.  For a complete flowchart of those analyses and procedures, see here.  (For optimal readability, I highly recommend projecting this flowchart on the nearest available IMAX screen.)

It’s hard to overstate just how damaging the Regulatory Accountability Act’s new rulemaking requirements would be if they were to become law.  These new requirements would completely overhaul Section 553 of the Administrative Procedure Act, which outlines the general notice-and-comment rulemaking procedures that agencies must following when developing rules.  Though Section 553 takes up only a few pages of the United States Code, the changes that would be made to that section take up more than 16 of the Regnibus bill’s 87 pages.  All of these new procedures are carefully oriented toward wasting scarce agency resources, delaying critical safeguards, and forcing agencies to adopt inadequately protective regulations.

When testifying before the House Judiciary Committee in 2011, CPR Member Scholar Sid Shapiro conservatively estimated that the Regulatory Accountability Act’s new procedures would add at least two to three years to the rulemaking process.  Considering that it already takes agencies anywhere from four to eight years to complete many rules, the Regulatory Accountability Act would ensure that the biggest rulemakings could take up to twelve years to complete—the process could conceivably span four different presidential administrations!

Because compliance with the Regulatory Accountability Act’s myriad requirements would invariably force agencies to sacrifice protection of the public interest for minimizing the regulatory costs imposed on polluting industries, the few safeguards that do emerge from this process would be significantly weaker than Congress had originally intended.  If the Regulatory Accountability Act had been the law for the past few 40 years, it would be no exaggeration to say that many of the public safeguards we now take for granted—such as rules to eliminate lead in gasoline or to require airbags in automobiles—would have never seen the light of day.

Though just one part of one of the many anti-regulatory bills that will come to the House floor this week, the Regulatory Accountability Act clearly illustrates their collective goal:  an attempt to block the implementation of laws enacted by previous Congresses—including Wall Street reform, healthcare reform, and vital environmental laws—that an extremist minority faction in the current Congress does not happen to like.  They lack the votes in the Senate (and the necessary control of the White House) to repeal these laws, so congressional Republicans have launched a scorched earth campaign against the U.S. regulatory system in effort to block their implementation.  For a political party that has become so irretrievably lost to its own nihilism, it should be no surprise that congressional Republicans have concluded that the next best thing to repealing existing laws is to completely incapacitate the agencies charged with carrying them out.

As a country, we face too many difficult challenges to allow ourselves to become sidetracked by the kind of silly political games that the Regulatory Accountability Act represents.  If House Republicans refuse to be part of the solution to these challenges, then they should at least refrain from trying to throw up unnecessary roadblocks in front of those who would.