The following is an update on bills introduced so far in the 109th Congress that could affect regulatory policy in the public interest. By Bill Number | By Subject Bills to Watch H.R. 185 — Program Assessment and Results Act This bill would essentially codify the Program Assessment Rating Tool, a highly political assessment scheme the White House uses to justify its decisions to slash agency budgets and to distort agency priorities. More information at www.ombwatch.org/files/regs/incongress/para. Although it has been reported favorably out of committee, the bill has not proceeded to the floor because, reportedly, it has been held up by the Appropriations Committee. H.R. 576 — Joint Committee on Agency Rule Review Act This bill would amend the Congressional Review Act (CRA) by creating a joint congressional committee devoted to agency rule review. Resolutions of disapproval under the CRA would no longer be referred to the committee of jurisdiction in each chamber but would instead be referred to the new joint committee. Agency rules being challenged under the CRA would thus be scrutinized not by the members of Congress with the most expertise in the relevant subject matter but, instead, by a new joint committee that not only would lack expertise but also could more easily be targeted by corporate lobbyists. H.R. 682 — Regulatory Flexibility Improvements Act This bill would extend the section 610 reviews of the Regulatory Flexibility Act to all rules on the books which the agency determines have a significant economic impact on a significant number of small entities. By requiring agencies to review all such rules every ten years, this bill would drain agency resources by diverting them away from protecting the public and into navel-gazing analyses. Even proven protections such as the ban on lead in gasoline and safeguards protecting workers against black lung would be subject to these reassessments. These analyses would be even more burdensome than under current law, because the bill would force agencies to calculate reasonably foreseeable indirect economic effects, which agency representatives at a recent Senate roundtable suggested would be so speculative as to be useless for policymakers. Additional sections would do the following:

• Further expand the scope of rules subject to the Regulatory Flexibility Act by including amendments to land management plans, rules affecting Indian tribes, IRS recordkeeping requirements, and regulations governing grants to state and local governments.
• Extend Reg Flex analytical burdens to a whole new universe of public protections — human services rules, such as those protecting abused and neglected children in federally-funded child welfare programs — by including nonprofits in the definition of small entities and expanding the scope of Reg Flex to regulations governing grants to state and local governments.
• Give corporate interests an even greater advantage in the regulatory process by giving the head of the Small Business Administration’s Office of Advocacy (a taxpayer-funded office that lobbies for corporate special interests) a preview of proposed rules before they are published in the Federal Register and increased opportunities to intervene in the process.

An additional section would actually give SBA’s Office of Advocacy the power to write regulations governing all agencies’ compliance with the Regulatory Flexibility Act. Given that Advocacy is a taxpayer-funded voice for business interests, this provision is particularly troubling. H.R. 725 — Paperwork and Regulatory Improvements Act Resurrected from the 108th Congress, this bill would authorize a pilot study of “regulatory budgeting.” In this kind of bizarre rationing of our public protections, agencies would be given a fictional budget of total costs that can be imposed on corporate special interests through regulations; then, when agencies hit that cap, they would be prohibited from issuing any new protections of the public interest, no matter how urgent the need. Another provision duplicates H.R. 1167. H.R. 931 — Congressional Responsibility Act This dangerous bill would essentially revive the Nondelegation Doctrine by statute. The bill would require Congress to act before any final regulation could actually take effect. Upon issuing a new final regulation, an agency would be required to send a report to Congress with the text of the regulation and explanatory material. A member of Congress would then have to introduce a bill specifically allowing that regulation to take effect, and the bill would be subject to a fast-track process with limits on debate and no opportunity for amendment. A garbled judicial review clause may clarify that the regulation but not the bill itself constitutes final agency action, but it could possibly mean that the congressionally endorsed final rule escapes Administrative Procedure Act review. H.R. 973 — Program Reform Commission Act This bill would create a purely legislative commission charged with reviewing agency recommendations for programs to be eliminated and then suggesting, based on those recommendations or on its own initiative, plans to reorganize government programs. The coda to the bill is a sense-of-Congress provision that supports swift review of commission plans without actually imposing a fast-track process. H.R. 1167 — Amending Truth in Regulating Act This bill would amend the Truth in Regulating Act by making permanent a pilot project in which the Government Accountability Office is to prepare, upon request of a member of Congress, an independent cost-benefit evaluation of new economically significant regulations. These new analyses could overwhelm GAO and divert it from its investigative and reporting functions. H.R. 1229 — Federal Consent Decree Fairness Act This bill is the companion in the House to S. 489. H.R. 3143 — Major Regulation Cost Review Act This bill, like H.R. 682 and S. 1388, would make the Regulatory Flexibility Act even more burdensome by requiring section 610 reviews of most important rules on the books. Whereas the other two bills would require these reviews every 10 years of rules determined to have a significant economic impact on a significant number of small businesses, this bill would require reviews every five years of all major rules as defined by the Congressional Review Act. Moreover, this bill would demand that agencies conduct cost-benefit analyses (observing the strictures of OMB Circular A-4) during the section 610 reviews, and OMB would be expected to use those analyses in its annual regulatory accounting report. Expecting agencies to conduct cost-benefit analyses — which are time-intensive and expensive to conduct — of every major rule on the books every five years would be a crushing burden that would leave government agencies little if any time left for actually protecting the public. H.R. 3148 — Joint Administrative Procedures Committee Act This bill essentially duplicates H.R. 576 but adds some disturbing additional features: it would charge the new joint congressional committee with reviewing the agencies’ semiannual regulatory agendas and examining, at its leisure, any existing regulatory protections. H.R. 3276 — Government Reorganization and Improvement of Performance Act This bill officially introduces the White House’s proposal for fast-track government reorganization authority and a sunset commission before which agencies would be forced to plead for their lives every 10 years. Click here for analysis, and here for a statement from OMB Watch on the proposal. H.R. 3277 — Federal Agency Performance Review and Sunset Act This bill basically introduces a standalone sunset commission proposal without the accompanying fast-track reorganization authority of H.R. 3276 and S. 1399. S. 489 — Federal Consent Decree Fairness Act This bill attacks consent decrees (the agreements that resolve cases so that they don't have to go all the way to trial) in federal court cases against state and local governments for violating federal law and ignoring people’s rights. It would require these agreements to expire any time there is a change in administration or every four years. It would introduce a new degree of uncertainty in most civil rights litigation against state and local governments, and it would discourage litigants in the strongest civil rights cases from settling in an early stage of the case. The bill could thus discourage public interest groups from bringing some legitimate civil rights grievances to court, while increasing the cost both to individuals and government of those cases that are litigated. S. 1388 — Regulatory Flexibility Reform Act This bill basically duplicates the core feature of H.R. 682: applying the Regulatory Flexibility Act retroactively and inducing paralysis by analysis. S. 1399 — Government Reorganization and Program Performance Improvement Act Like H.R. 3276, this bill officially introduces the White House’s recent proposal for fast-track government reorganization authority and a sunset commission before which agencies would be forced to plead for their lives every 10 years. Click here for analysis, and here for a statement from OMB Watch on the proposal. The Senate version of the bill adds another anti-regulatory twist: while the White House proposal and the House bill would exclude programs that enforce public interest regulations from automatic sunsets, the Senate bill lacks that exclusion. S. 1411 — National Small Business Regulatory Assistance Act This bill is the only one on this list that would improve regulatory policy. This bill would be the first step to strengthening Small Business Development Centers (SBDCs) around the country by launching a pilot in which SBDCs would provide compliance assistance to small businesses. This bill would help level the playing field for small businesses by giving them specialized assistance with understanding and complying with federal regulations. This bill is the only one on this list that would not compromise the public’s protections, directly or indirectly; instead, it would actually help some businesses to comply with the regulations that are in place to protect the public. By Bill Number | By Subject Bills by Subject Eliminating Government Accountability The House already forced out a measure giving the Department of Homeland Security the power to waive all law in the course of securing the borders. Two bills, H.R. 1229 and S. 489, would further eliminate government accountability by limiting the public’s ability to hold state and local governments accountable for their violations of federal law. Paralysis by Analysis The PAR Act, which would endorse the administration’s burdensome PART assessments, is currently held up. Three bills, H.R. 682, H.R. 3143, and S. 1388, would force agencies to review their most significant rules on the books — even proven protections such as the ban on lead in gasoline, and safeguards that protect workers from black lung, brown lung, silicosis, and asbestosis — so frequently that agency resources would be drained and diverted from their missions to protect the public. H.R. 1167 would divert the GAO from its important investigative work by requiring it to conduct yet more cost-benefit analyses of economically significant regulations. Regulatory Rationing See H.R. 725 above. Many of the other bills discussed above would accomplish the same goal as regulatory budgeting by imposing so many new requirements on the agencies that they could run out of resources to devote to protecting the public. Stripping Out Protective Standards No one disputes that agencies must periodically reassess the level of protection they are providing the public. The problem of H.R. 682, H.R. 3143, and S. 1388 is in part that they would force agencies to reassess their existing regulations with an eye toward deleting them. These bills would distort regulatory policy by pressuring agencies only to eliminate existing protections and ignoring the possibility that existing rules should be strengthened or that unmet needs cry out for new protective standards. Reorganizing Government into Irrelevance H.R. 3276 and S. 1399 would give the White House fast-track government reorganization authority. Reorganization is not, in general, intrinsically anti-regulatory, but the prospect of giving fast-track reorganization authority to this administration, given its proven hostility to protections of the public interest, is nightmarish. Restructuring could become the tool for weakening many government programs. Given the importance of decisions about the structure and function of government programs, Congress should be allowed to give any restructuring proposals a full and fair debate — which Congress would not be able to do under these bills. Government Shut-Downs H.R. 3276, H.R. 3277, and S. 1399 would establish a standing commission before which agencies would be forced to plead for their lives every 10 years. Even if the commission concluded that a program should be allowed to live another 10 years, it would automatically die unless Congress affirmatively acts to save it. In a time of shrinking budgets, it is inefficient and wasteful to force government programs to re-justify their very existence. Congress has enough resources at its disposal — ranging from the GAO to its own power to hold hearings — that it can ferret out programs in need of elimination without such an extraordinary waste of agency time.