Judging by opinion polls, the American people are presenting Congress with a unique challenge in "regulatory reform": we must curb regulatory excesses while maintaining our commitment to important national goals-- worker safety, clean air and water and the like. The Regulatory Reform Act, sponsored by Sens. Patrick Leahy, William Roth, Thomas Eagleton, myself and 77 other senators, and soon to be considered by the full Senate, responsibly meets this challenge. Enactment of this kind of legislation is long overdue.
Unfortunately, some would unnecessarily shield an important part of the activities of so-called ''independent" agencies from effective public accountability. The views of these advocates are wrong based on long- standing rules of law; they are wrong based on the provisions of the Regulatory Reform Act; and they are wrong based on the balanced policies our constitutents expect us to put in place.
This bill is designed to update our administrative procedures to meet the regulatory challenges of today, to improve the effectiveness of federal regulation, to decrease its unnecessary burdens and to increase the accountability of federal agencies. How to ensure that federal agencies comply with the law and execute their missions fairly remains one of the central challenges of administrative law. To achieve agency accountability, the Regulatory Reform Act contains a carefully crafted balance of limited judicial and presidential oversight, a balance that preserves the rule-making authority given to all agencies. Amendments to weaken or upset this balance are simply unacceptable.
The heart of this act is the requirement for the regulatory analysis of major rules, a process by which agencies must publicly evaluate the tradeoffs of their regulatory proposals to improve their effectiveness and reduce their costs. Yet because detailed judicial review of such a technically complex process is generally considered to lead to unnecessary delay and judicial second-guessing of substantive agency expertise, the act precludes regulatory analysis from being an independent subject of judicial review.
To ensure some oversight of such a central element of regulatory reform, the act authorizes the president to establish procedures for regulatory analysis. Contrary to suggestions that such a proposal is unprecedented, the regulatory reform bills reported both by the Senate Governmental Affairs Committee and by the House Judiciary Committee during the 96th Congress contained broad provisions for OMB review of regulations without any distinction between "executive" and "independent" agencies. The real novelty of the Regulatory Reform Act is that its executive oversight is much more carefully circumscribed than the proposals of the last Congress.
The president may establish procedures for regulatory analysis only after publishing them and receiving public comment. If the president delegates this authority to an official other than the vice president, that official must be confirmed by the Senate. Most importantly, the act explicitly ensures that the decision-making authority of all agencies is not altered.
Both existing law and the Regulatory Reform Act prevent the president from using this authority to "blackmail" an agency. The act itself prohibits the president from using the authority merely to delay regulations. Indeed, if an agency unreasonably delayed a rule-making, for whatever reason, a court could force it to proceed. And any regulation must be supported by the public record of the rule-making and must comply with the relevant substantive statute. A reviewing court could overturn the rule if any abuse of the president's authority made the rule arbitrary or otherwise unlawful.
In short, viable oversight of regulatory analysis is established without giving the president some new "veto" authority over agencies.
In addition, this oversight authority only applies to "major rules," estimated to number only 165 each year, out of a total of about 7,000. Surely it is a most outrageous exaggeration to characterize the executive oversight in this bill as giving the president "day-to-day oversight and management authority over key actions" of any agency as Sen. John Glenn did ("We Can Do Without This 'Regulatory Reform' ", op ed, Feb. 25).
To speak of executive oversight as contradicting "the very notion of agency independence" is to miss the point. Authority upon authority-- ranging from the Governmental Affairs Committee's own study on federal regulation to a recent opinion of the U.S. Court of Appeals here--explains that these agencies are "independent" because of their adjudicatory, not rule-making, role. How then, as Sen. Glenn contends, would procedures established by the president for regulatory analysis, which is done only in major rule-making and not in adjudications, contradict "the very notion of agency independence"?
When it comes to rule-making, why should a consumer safety rule of the CPSC (an "independent" agency) be treated differently from a worker safety rule of OSHA (an "executive" agency)? The rules of "independent" agencies are important, but are the rules of "executive" agencies (such as the EPA) any less important? The very importance of all major rules makes outside oversight of their regulatory analyses a practical necessity.
For the student of history, a list of horribles that would flow from this limited executive oversight provision and alarmed comments from the "independent" agencies are familiar. During the 1945 hearings on the original Administrative Procedure Act, the ICC wrote to the House Judicary Committee saying the act "would make impossible the performance of some of our important duties." Could anyone seriously maintain that that act has crippled the ICC, or any other agency?
We must not turn the clock back and allow a group of agencies to operate with relatively unbridled discretion. The American public deserves better.