Corporate-Conservative Alliance Plots Attack on Safeguards

From many small and supposedly disconnected proposals, a larger pattern is emerging: corporate special interests and conservative lawmakers are conspiring to mount a comprehensive assault on regulatory protections, on a scale equivalent to the broad-based attacks of the Contract With America. The corporate-conservative alliance behind the major attacks of the mid-1990s decided almost immediately thereafter that any comprehensive "regulatory reform" is doomed from the start and that the wiser course of action would be to pursue the same objectives through smaller piecemeal proposals. Many of the same players are active today, and they appear to have learned that lesson well. The November elections reinforced GOP political hegemony, and an emboldened corporate-conservative coalition is seizing the opportunity to pick up where the Contract With America left off. The combination of proposals recently announced and initiatives already underway reveals a plan to dismantle public safeguards in a corporate takeover agenda every bit as ambitious as the discredited efforts of the Contract With America. Detailing the Corporate Takeover Agenda The new attack on public safeguards adapts some of the ideas from the Contract With America and also offers some newly-minted ideas just as devastating as any from the 1990s. The single intention of all these efforts is to realign power dynamics in order to increase corporate profits by reducing the level of protection government is supposed to provide for the people. The details of the new corporate takeover agenda fall into the following clusters. Distorting the Process for Creating Protections The corporate-conservative coalition has had plenty of success in weakening or eliminating specific protections one by one, but the possibility that the public will realize the stakes -- as happened with a few high-profile missteps, such as the threatened weakening of the Clinton administration's standards for arsenic in drinking water -- makes that approach risky. The corporate-conservative alliance has thus always worked with a second approach less fraught with these risks and more capable of wide-ranging consequences: weakening the underlying process for creating all regulatory protections. Here are some of the proposals to distort the regulatory process: Net Benefits: The vision of net benefits is that agencies will be required to prove, through rigged cost-benefit analytical formulae, that any proposed regulation results in quantified, monetized benefits that exceed quantified, monetized costs. Industry may be seeking a bill to codify E.O. 12,866, the cost-benefit analysis executive order. Additionally, as a possible further step in the direction of a net benefits policy, the White House's Office of Information and Regulatory Affairs (OIRA) has used its 2005 annual draft regulatory accounting report to invite comments on the utility of net benefits measures. Centralized White House Review: The White House obviously has not ceased serving as one-stop shopping for corporate special interests seeking to roll back existing and pending regulatory safeguards. OIRA has extraordinary powers under the Paperwork Reduction Act (reauthorization of which is a priority item in the 109th Congress) to modify information collections, even those necessary for proposed regulations. The latest major OIRA initiative is the hit list of regulations to be weakened or eliminated, presumably in order to benefit the manufacturing sector, which puts at risk protections ranging from safe drinking water to Listeria to family and medical leave rights. Regulatory Budgets: The vision of regulatory budgeting is that agencies are given fictional "budgets" of total costs that can be imposed on industry through regulations. When an agency reaches its fictional budgetary cap, it must cease regulating. The first step in this direction is H.R. 725, which would authorize a pilot study of regulatory budgeting. If current cost-benefit analysis policies had been in place 30 years ago, we would not have banned lead in gasoline! Read more. Regulatory Sunsets: Corporate special interests are clamoring for regulatory sunsets, or automatic expiration dates for regulatory protections, on the argument that older regulations are somehow necessarily outdated. This argument easily falls apart: consider important protections such as the ban on lead in gasoline, which was a good idea 30 years ago and is still a good idea today. The first step in the direction of regulatory sunsets is H.R. 682, which would use periodic reviews under the Regulatory Flexibility Act as an occasion for agencies to consider whether a regulation is still needed. Regulation by Litigation: Using the pejorative label of "regulation by litigation," some industry-funded think tanks have been raising objections to the consent decrees that resolve deadline cases and other litigation against the agencies to compel them to do their jobs. Reportedly, Rep. Candice Miller (R-MI), who chairs the regulatory affairs subcommittee of the House Government Reform Committee, is interested in legislation to force OIRA review or the equivalent of notice-and-comment rulemaking as a condition precedent of any consent decrees. Hiding Information the Public Needs Whether the goal is holding corporate special interests accountable for the harms they cause or holding the government itself accountable to the public from which it derives its authority, information is critically important. The corporate-conservative conspiracy therefore is planning to constrict the free flow of information in order to continue implementing its agenda in the shadows. Industry Information Disclosures: Many regulatory protections depend on the public's ability to force corporate special interests to disclose vital pieces of information that become the basis of sensible safeguards. A proposed amendment to the Senate's bankruptcy bill would have reduced corporate disclosure by resurrecting a small business paperwork measure that would give a get-out-of-jail-free card to small businesses for first-time violations of information collection requirements. Fortunately, that amendment was defeated, but it could return. There may be other efforts to reduce industry's information disclosure requirements. The Paperwork Reduction Act: Reauthorization of the PRA is likely to start in earnest this year. Not only could it be the vehicle for other anti-regulatory riders, but it is also a powerful tool that enables OIRA to change information collection requirements ranging from surveys to reporting and labeling requirements. Open Government: The corporate takeover of government policy thrives in the secrecy that this administration is willing to create. The administration's penchant for secrecy and distinct unwillingness to err on the side of disclosure when faced with Freedom of Information Act requests will continue to present a formidable challenge to protections of the public interest. Supplanting Science With Politics This administration has an atrocious record of sullying science with political considerations. The corporate takeover agenda has as one of its aims the continuation of this trend, in order to cast doubt on the scientific conclusions that underscore the need for public protections. OIRA has indicated that implementation of peer review will be a major priority this year, and one of the suggestions bandied about in OIRA's pre-109th Congress meetings with industry has been legislation to add judicial reviewability to the Data Quality Act. The Integrity of Science coalition, a network of scientists and advocates, is continuing to monitor these developments and organize broad-based opposition to further attempts at politicizing science. Neutering Federal-State Partnerships Another common theme addresses the relationship between federal and state governments in regulatory policy. State and local governments are important partners in implementing federal standards, in issue areas ranging from special education to the environment. Additionally, state and local governments are actors just like corporations whose behaviors need to be modified -- they are employers, polluters, managers of waste dumps, and so on. Finally, they are also important as regulators themselves; especially in a time of GOP hegemony in federal government, we rely on state/local governments to create protections more stringent than the federal floor. Distorting this complex relationship can, therefore, wreak havoc in regulatory policy. Unfunded Mandates Reform Act: State and local government groups are clamoring for increasing the enforcement and coverage of UMRA, and they are being aided by GOPers anxious to reestablish the party's states' rights credentials--especially in a time of budget cuts and preemption policies that have been harmful to the states. This effort could pull back on any number of public protections insofar as state and local governments would incur costs above $62 million. Among the protections at risk would be the minimum wage, because any increase would affect states as employers, and environmental protections, many of which depend on state agencies for enforcement. Expanded coverage could also put at risk mandates that establish standards for special education, disability access, foster care and more. Preemption: The issue of the federal government's power to preempt state policies leads to anti-regulatory initiatives that occupy one extreme position or the other. On the one hand, the federal government is aggressively preempting the states' efforts to develop regulatory protections of the public interest in the face of weak or nonexistent federal protections. On the other, Sen. Lamar Alexander (R-TN) has expressed interest in offering a bill to prevent any federal preemption of state regulations unless the law specifies the exact conflict between state and federal law. (This kind of bill has been offered before.) Consent Decree Rollbacks: Alexander is also promoting a bizarre plan to replicate the Prison Litigation Reform Act for all consent decrees that resolve federal court cases against state or local governments. (The sole exception would be for school desegregation decrees.) His bill would establish automatic sunsets for consent decrees: every four years or with every change in administration. Establishing an Imperial Presidency What we have called the Imperial Presidency is a drive to consolidate as much power as possible, with as little accountability as possible, in the executive branch and ultimately the White House itself. Threats to Whistleblowers & Agency Experts: The administration has already won management "flexibility" and the erasure of civil service protections for workers in the Department of Homeland Security, and it is seeking the same flexibility for the rest of the government workforce. One proposal would link worker salary increases to an agency's score in White House program performance reviews. The workers who would be imperiled without civil service protections include the agency scientists and experts who must conduct research and reach conclusions that threaten industry's bottom line. As menacing as the administration has already been to such familiar figures as David Graham, Jack Spadaro and Sibel Edmonds, the elimination of civil service protections could make things even worse. Reorganization Authority: The White House is also seeking -- with strong support from Rep. Tom Davis (R-VA), chair of the House Government Reform Committee -- the power to reorganize the very structure of government. The danger is obvious: any resulting restructuring would decrease the role and power of many agencies charged with serving the public interest. Restructuring guided carefully by Congress can serve the public interest (for example, some groups are calling for a single food safety agency), but wholesale, unchecked authority is a recipe for disaster. DHS Above the Law: The REAL ID Act has a provision that would give the Department of Homeland Security the power to waive all law in the course of securing the borders. The measure, which passed the House and is now moving as a rider to the Iraq supplemental, also has a clause stripping the courts of authority to hear cases arising from any waiver decisions. Sunset & Results Commissions: A Sunset Commission bill would force government programs -- not individual regulations, but programs in their entirety -- to plead for their lives every 10 years or else expire. A Results Commission bill would allow a presidential commission to recommend restructuring of programs and departments, based in part on performance data, and to have its proposals fast-tracked through Congress. Both would expose the structure of government and the very existence of a government agency to the destructive whims of the corporate-conservative coalition. Wrapping Attacks in a Rhetoric of Results Performance is developing into a technical threat equivalent to cost-benefit analysis. Just as CBA is justified on the grounds that regulatory costs should not exceed benefits, the drive to performance assessment is justified with a good government rationale (in this case, that government programs should produce results or else be held accountable). Also like CBA, the devil is in the details: both CBA formulae and performance assessments are typically rigged to side against stringent protection of the public interest. The link between CBA and performance also crosses from the metaphorical to the actual: the White House is using its performance measurement system, the Program Assessment Rating Tool (PART), to penalize agencies for failing to use cost-effectiveness in regulatory choices or conduct cost-benefit analyses (even when forbidden by law). PAR Act: The Program Assessment and Results Act would codify the PART, which is currently not authorized by any law. The PAR Act offers a pretense of congressional oversight over PART even as it gives the White House a green light for continuing with PART and any other assessments it sees fit to conduct. Beyond PART: PART is expressly intended to link management and budget decisions with notionally neutral information about "performance" or "results." Performance rhetoric is already starting to creep beyond PART: proposals for civil service reform, reorganization and results commissions, and more would adopt the language of performance (or even PART scores themselves) in projects that could have widespread consequences for the public interest. Take Action OMB Watch and Citizens for Sensible Safeguards, a coalition of leading public interest organizations created to defeat the Contract With America, will continue to monitor developments and oppose the corporate-conservative agenda. You can do your part as well, by signing up for action alerts and updates and adding your voice to the calls for protections of the public interest instead of a corporate takeover of our government. Sign Up for Action Alerts Email address: Your name: Preferred mail format: auto-detect text HTML   Be sure to check our Take Action page periodically, at www.ombwatch.org/files/regs/action.
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