As expressed in a recent Wall Street Journal opinion piece, Sen. Rob Portman (R-OH) clearly sees little value in regulation, and generally fails to consider the benefits of public safeguards or their necessity when it comes to protecting us from food-borne illnesses, economic meltdowns, and lead-laden toys. He has launched his anti-regulatory campaign despite the fact that economists respected by both liberals and conservatives have concluded that regulations’ impact on job creation may be mildly positive because they tend to spur innovation.
Sen. Portman has been the chief architect and major cheerleader for a number of legislative proposals that would upend a system that permits agencies to use the best available science to issue rules that protect us from dirty air, unsafe workplaces, tainted drugs, and contaminated food.
The legislation he proposes does this by erecting more and more hurdles for resource-starved agencies to negotiate the already complicated rulemaking process, giving deep-pocketed special interests that want lax rules even more influence than they have now.
His current proposal is the Independent Agency Regulatory Analysis Act. While it sounds pretty wonky and harmless, it carries a potent punch and is very complex. The bill was just introduced late this summer. Co-sponsored by Senators Susan Collins (R-ME) and Mark Warner (D-VA), the Act focuses on independent agencies that include the National Science Foundation, the Consumer Product Safety Commission, the Federal Communications Commission, and the Nuclear Regulatory Commission.
A rushed vote
But despite the bill’s intricacy, and very serious implications, it’s being rushed to a vote. A powerful Senate committee chaired by Sen. Joseph Lieberman (I-CT) may consider the bill as early as November 15.
The consequences for public safety are significant. For example, the NRC would have a much more difficult time writing rules that would ensure that nuclear power plants operate safely in all circumstances, including earthquakes. That’s because this bill would give the President unprecedented authority to require this independent agency to submit its rules to the White House Office of Management and Budget. If the White House disagreed with the way the NRC was considering the costs and benefits of a proposed rule, or thought that the agency hadn’t considered enough business-friendly alternatives, that criticism would be part of the public record. Any company could use that critique to try to fight a critical safeguard in court.
Why does it matter whether one Senate committee votes on the Portman-Collins-Warner proposal? That key vote could well open the door to lame-duck shenanigans that permit the Portman-Collins-Warner bill to be added to a must-pass bill in the dead of night.
And it is not likely that foes of regulation will be content with passage of this bill, which affects only independent agencies. Last year, Sen. Portman proposed the Regulatory Accountability Act, which would upend 65 years of administrative process. Executive branch agencies would be required to adopt the least costly rule, not the most protective rule, overriding bipartisan laws—such as the Clean Air Act. They would face many more procedural hurdles before they could implement substantive public protections, and more challenges in defending these protections if sued.
Here’s how the current system works. Congress, after much debate and informed by the desires of their constituents, passes laws. The laws give agencies their marching orders – keep our air clean and our water drinkable; protect us from unsafe food, drugs and consumer products; and prevent nuclear accidents. Based on those broad mandates in law, agencies use the best available science to create the rules to implement them.
The regulatory process gives any company or other stakeholder affected by any rule the chance to see and comment on proposed rules, to ask for changes, and to suggest alternatives. Agencies generally consider the cost and benefits of regulations as well. Small businesses get special consideration.
Far from perfect
This system is far from perfect. Too many rules are delayed, or are held up when companies sue, or emerge from the regulatory gauntlet too lax to adequately protect public health and safety. There are gaps in rules, and a shortage of resources to enable agencies to do their jobs. If you want a glimpse of just how badly the current system works, and how ill served we are, this recent indictment of our food safety system offers a pretty harrowing description of the dangers of insufficient regulation.
Sen. Portman’s efforts would make the system even worse, tipping the scales even more heavily against American families and in favor of corporate special interests.
Whether it’s food or nuclear power plants, clean air or cribs, safety should come first. When polled, the American public agrees with that sentiment, however much they may hate the idea of ‘regulation’ in the abstract. We can’t let Sen. Portman, or any other lawmaker, rewrite the rules in a way that makes all of us more vulnerable.
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