It is akin to trying to put Humpty together again.
There probably isn't an area of government more dull than the administrative process governing rulemaking. But as Supreme Court Justice Antonin Scalia said at a hearing last week, "There are those of us who love it."
In fact, there is interest in Congress in re-creating what it put asunder in 1995: the Administrative Conference of the United States. Created in 1964 as an independent agency made up of private attorneys, judges, academic experts and agency regulators to serve as a think tank and regulatory-process problem solver, the conference was swept away in 1995 as part of a Republican-led frenzy to shrink the federal bureaucracy.
It was an easy scalp to take with a budget of only $1.8 million and a staff of 18. With a quick swipe of the budget knife, the tiny agency was gone -- as was its considerable expertise and specialized knowledge of the federal regulatory system.
There was a loud but brief outcry to save the agency. Some of its most prestigious alumni, Supreme Court Justices Scalia and Stephen G. Breyer, pleaded for a reprieve, noting the obscure agency had been credited with saving the federal government millions of dollars.
It came up with the idea of negotiated rulemaking, the idea to get different sides of an issue to meet to seek compromise instead of filing lawsuits. It developed a model statute on civil penalty sanctions, and guided agencies on how to conduct open meetings. Its recommendations on how to improve the Social Security appeals process saved $85 million annually, according to a history of the conference's work.
Scalia, appointed conference chairman in 1972, and Breyer, a member of the group from 1981 to 1994, pointed out last week at a House hearing that the conference was a bipartisan problem solver that had considerable sway with the agencies and Congress.
"I think the Administrative Conference was an enormous bargain, because you are really getting the benefit of the legal advice of, I think, some very good private lawyers whose time nowadays probably goes out at $500 an hour or something like that," Scalia told the House Judiciary subcommittee on commercial and administrative law.
The idea of the conference dates to 1953 when President Eisenhower established a temporary group to analyze issues generated from the government's growing regulatory establishment and passage of the Administrative Procedure Act of 1946, which laid out formal rules of procedure for the agencies. The first conference started work in 1968.
Thomasina V. Rogers, who was general counsel of the Equal Employment Opportunity Commission before becoming the last chair of the conference from 1994-95, said its strength was the diverse knowledge of the members and the way political affiliation was minimized. She said the group attracted "monumental talent" in the area of administrative law.
Ironically, it was one of the conference's recommendations in 1992 that triggered the move to kill it: a study that concluded that the ranks of administrative law judges needed diversity and a performance measure. That sparked a lobbying campaign against the agency.
Charles P. Rippey, of the Office of Administrative Law Judges, was a leader of the opposition: "The ACUS recommendations for the federal administrative judiciary are unwise; unsupported by relevant research and careful analysis; and the product of a badly flawed process that did not allow adequate participation. . . . A government agency that behaves in this manner should be abolished or completely overhauled."
Rippey's wish was Congress's command. The conference closed the doors and put out the lights at 2120 L St. NW for the last time on Oct. 31, 1995.
"The demise of the conference was very unfortunate. For the price of a small staff, it brought together all the stakeholders in our administrative law system, across party lines, to produce widely accepted recommendations for fair, efficient and effective agency procedures," Jeffrey S. Lubbers, fellow in law and government at Washington College of Law at American University, said in an interview. Lubbers worked for the conference for 20 years, first as an attorney and then as its research director.
Now, the same subcommittee that helped put the conference out of business is building a case to reauthorize it.
Rep. Chris Cannon (R-Utah), its chairman, wants a new conference to examine current regulatory challenges such as how science is used in rulemaking and the litigation that results from regulation.
"It's a small budget item, but it can make a huge difference," Cannon said in an interview. He said he would hold another hearing and expects that the Senate will be interested in the idea.
David C. Vladeck, an associate professor of law at Georgetown University Law Center and a former member of the conference, said there has been no substitute for the conference even though other administrative law experts have tried to step into the breach.
"They don't have the resources or the access to do what ACUS did. Their work doesn't have the same credential of independence," said Vladeck. He said there has been no independent analysis of recent laws such as the Data Quality Act, under which outsiders can question the data used by agencies to develop rules, or the Small Business Regulatory Enforcement Fairness Act, which considers the effects of rules on small businesses.
"If it comes out that it is revived and it's evenhanded, nonpartisan and objective, it will be a huge value to government relations," said Morton Rosenberg, specialist in American Public Law at the Congressional Research Service.