One day last summer, Sen. Dale Bumpers (D-Ark.), with little advance fanfare, tacked an amendment to a barely noticed judicial improvements bill that would have altered dramatically the role of the courts in reviewing all federal regulations.
Taken by surprise, environmental and other health and safety advocates, to name a few, were up in arms. Former senator Edmund Muskie predicted that if the Bumpers amendment became law it "Could stop the federal government in its tracks." Others claimed it could result only in endless litigation that would tie the hands of the regulatory bureaucracy.
White House officials and regulatory aficionados such as Sen. Abraham Ribicoff (D-Conn.), chairman of the Governmental Affairs Committee, and Sen. Edward Kennedy (D-Mass.), chairman of the Judiciary Committee, hurriedly scrambled about trying to beat the amendment, which a number of senators later said they had known little about.
But after a 51-to-27 defeat for Bumper's opponents on a motion to table the amendement, it sped by the Senate on a voice vote and was read by many as the body's toughest expression of antiregulatory sentiment.
Now, nine months later, versions of the Bumpers amendment are alive and kicking. In fact, the Senate Judiciary Committee recently approved a version of the plan by a 9-to-1 vote. And a Bumpers-like proposal is a part of fair housing legislation now before the Senate.
So serious is the issue at this point that Stuart Eizenstat, President Carter's top domestic affairs adviser, attended a meeting in Bumper's office with top officials from the Justice Department and Office of Management and Budget two weeks ago. Although administration officials say they still are studying Bumper's latest amendment, Bumpers said the officials left his office "with a different perception" and he is hopeful of getting their support.
Congressional efforts to put together regulatory reform legislation seem stalled, but powerful lobbying groups -- such as the American Bar Association and the Business Roundtable -- and a number of members of Congress have been working diligently to find a home for the Bumpers amendment and its somewhat softer successors, such as a version known as "Baby Bumpers."
"We've tried to orchestrate a pretty good lobbying effort on this thing," Bumpers said yesterday. "It's not the only approach to regulatory reform, but it is the one most likely to provide the kind of relief the business community wants and is entitled to."
In essence, the Bumpers amendment -- even its later versions -- would put the courts in a much stronger position to overturn federal regulations. Critics claim that no matter how it is worded, the amendment could turn the rule-making process into a de facto trial, unlike the current procedure governed by informal legal guidelines. "It's a relief act for lawyers," said one opponent.
First of all, the Bumpers plan would allow courts to review independently the stature behind a given and challenged regulation and no longer would permit courts to defer to an agency's interpretation of a statute. In addition, it would allow a court to review the agency's basic jurisdication over a given law.
The administration, among others, hasn't yet bought the idea, although it is under continuing White House and Justice Department study.
"This would directly undermine the value of creating agencies as specialized, expert decision-making bodies," Attorney General Benjamin Civiletti wrote last month to Rep. Peter Rodino (D-N.J.), chairman of the House Judiciary Committee.
"It would throw to the courts for re-examination the volumes of evidence on highly technicl factual and policy issues that are generated in the most fundamental rule-making," Civiletti said. "It would create incessant uncertainty about the law, fostering more and more complex litigation challenging agency action."
In Bumper's view, the Carter administration has been "knee-jerking" the amendment, reacting to critics of its thrust without studying it on its merits. "It isn't going to tie the courts down," he said. "People are entitled to a fair hearing."
He believes the amendment is a sound alternative to the numerous proposals that would let Congress veto agency rules and is a way to insure that the oversight responsibilities Congress historically overlooks are carried out, albeit in a different forum.
Further, he claims that environmental critics of the plan should be backing the Bumpers amendment, because it could answer their longstanding criticism of the Environmental Protection Agency, for example. Environmentalists have sued the EPA regularly, charging the agency with failing to issue tough regulations implementing congressional directives.
House supporters of the Bumpers proposal, such as Rep. Robert McClory (R-ILL.), were about to bring it a vote during Judiciary Committee consideration of regulatory reform legislation last month when Rodino announced he would cut off the session.
On the Senate side, staffs of the Judiciary and Governmental Affairs committees are trying to come up with a regulatory reform package that most likely will include a version of the proposal.
"We've come a long way," Bumpers said. "The thing looks pretty good in the House, and I believe the (Senate) Judiciary Committee is in a mood to report this thing out."