By a stroke of the legislative pen and with virtually no hearing record, the Senate may soon reverse nearly a century of precedent and give President Reagan day-to-day oversight and management authority over key actions of the Federal Reserve Board, the Federal Election Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission and some 14 other independent regulatory agencies. This decimation of the independents is apparently the primary, if unstated, objective of key proponents of the Regulatory Reform Act due to come before the Senate soon.
Starting in 1889, with the Interstate Commerce Commission, Congress created the independent agencies to insulate the administration of some of the federal government's most politically sensitive and technically complex regulatory tasks from ongoing presidential intervention and partisan politics. By statute, Congress has specified that the members of these boards and commissions are appointed for fixed terms; that the president cannot remove them for policy differences, but only for demonstrated inefficiency; and that no more than a simple majority of the members of an independent agency may come from any political party. One crucial aspect of the autonomy conferred by these statutory protections is that not one of these agencies currently submits pre-issuance drafts of its regulations for prior presidential review; indeed, such action would contradict the very notion of agency independence.
Under the pending Regulatory Reform Act, however, the president would be able to order independent agencies to submit drafts of all their major regulations to the Office of Management and Budget, where they could be held indefinitely, until OMB had "ensured" that they met presidentially dictated cost-benefit standards. Through these standards, in turn, the president could, for example, define which costs and benefits could be weighed by independent agency decision-makers and how they should count the present value of future impacts, such as the costs of future nuclear power plant accidents.
Congress has never countenanced such hands-on presidential interference in independent agency regulatory decisions, and for good reason, as a few examples will demonstrate. Under the Regulatory Reform Act:
* Nuclear safety standards, promulgated today by the increasingly tough NRC, would be subject to White House screening by avowed advocates of nuclear power.
* Baby-product safety standards, issued by the Consumer Product Safety Commission, would be vetted by officials who think the private sector can handle its own safety affairs.
* Federal Reserve Board money supply regulations would be checked by OMB staff desperate to bring down interest rates.
* The Federal Election Commission's campaign financing rules and the Federal Communications Commission's rules on candidates' access to TV would undergo "cost-benefit" review by officials with the most obvious partisan interests.
* SEC rules for investor protection would have to be submitted for White House clearance at the same time that major SEC investigations of administration officials or allies might be under way (remember Bert Lance and Robert Vesco?), seriously undermining that agency's credibility.
In future administrations, opposite but comparably strong biases might prevail, with equally undesirable results for fair and reasoned regulation in these sensitive areas.
Over the past five years, Congress, with extensive hearings and debate, has reviewed the charters of nearly half of the independents and has consistently reaffirmed their freedom from executive control. Yet, not a single day of hearings has been held on how the Regulatory Reform Act's sweeping changes in presidential authority would affect individual agencies and their spheres of regulation. Ironically, the only committee to receive "testimony" on this--letters from many independent agencies, obtained at my request--accepted my amendment to limit presidential supervision in this area, an amendment that, for parliamentary reasons, I will have to reintroduce on the Senate floor.
Congress has had good cause indeed for insulating nuclear and consumer safety, the soundness of our financial institutions and the regulation of the political process itself from presidential intervention. These vital protections--and those accorded the other objects of independent regulation--must not be lightly cast aside, certainly not without a full hearing in every case. We must not be seduced by presidential expansionism masquerading in the sheep's clothing of "regulatory reform."