A battle is brewing in the Senate over a measure that would force independent agencies to more fully consider the costs of new regulations, a plan that critics say is designed to derail key federal initiatives.
The drama unfolding in the Senate mirrors a similar one taking place in the courts, where regulators face numerous lawsuits alleging that they failed to properly consider the economic impact of rules tied to the landmark Dodd-Frank financial overhaul measure, which was put in place after the 2008 financial crisis.
Opponents of the Senate measure say the legislation will paralyze the agencies and make them more vulnerable to legal challenges. But supporters say it will have the opposite effect, forcing regulators to craft airtight justifications for their actions.
Under the legislation, the president can issue an executive order that would force independent agencies to do additional cost-benefit analyses before finalizing “significant” rules — basically, those with more than a $100 million annual effect on the economy.
The measure would also subject those rules to review by a unit within the White House called the Office of Information and Regulatory Affairs, or OIRA. That requirement in particular has outraged six senior financial regulators, including Ben S. Bernanke, chairman of the Federal Reserve, and Mary Schapiro, head of the Securities and Exchange Commission.
Independent agencies — as opposed to executive branch organizations, such as the Environmental Protection Agency or the Food and Drug Administration — are designed to function free of the influence of the White House and are not accountable to the president.
“This would give any President unprecedented authority to influence the policy and rulemaking functions of independent regulatory agencies and would constitute a fundamental change in the role of independent regulatory agencies,” the regulators said in an October letter to the Senate Homeland Security and Governmental Affairs Committee, which is in charge of drafting a version of the bill.
As opposition to the measure mounted, the committee twice delayed taking action, most recently this week, when it postponed a mark-up scheduled for Nov. 15.
But experts who track the committee say the panel, which includes several conservative Republicans and moderate Democrats, is likely to adopt the measure if it comes up for a vote.
Four dozen consumer advocate organizations and labor unions have joined forces to fight the bill, which is sponsored by Sens. Rob Portman (R-Ohio), Mark R. Warner (D-Va.) and Susan Collins (R-Maine).
This week, state securities regulators weighed in with a letter urging senators to reject the legislation. They said the bill “messages well” because it seems like a common-sense approach but is really just a tool to derail or delay the Dodd-Frank regulations and others by placing unnecessary burdens on resource-strapped agencies.
“The additional cost-benefit analysis is not an appropriate method for rulemaking across the board,” said Lisa Gilbert, director of Public Citizen’s Congress Watch. “It’s hard to estimate the true benefits of stopping the economy from a meltdown, for instance.”
But supporters of the measure say it has gained bipartisan support because it is a middle-of-the-road approach that has been embraced by presidents of both parties dating back to Ronald Reagan. Further, the measure tracks with this year’s recommendations from President Obama’s Jobs Council, which called for extending to independent agencies the same empirical analysis requirements applied to executive agencies.
In both the Reagan and Clinton administrations, the Justice Department concluded that the president had the authority to require such analysis.
President Obama has issued an executive order that urged the independent agencies to voluntarily comply.
But presidents have been reluctant to mandate compliance “out of deference to Congress,” which has a turf claim over independent agencies, a bipartisan group of former OIRA administrators said in a recent letter to the Senate. As a result, the agencies have done a lousy job of economic analysis, which is why it has been easy for the courts to slap down some elements of the Dodd-Frank act, supporters of the bill said.
In their letter, the former OIRA administrators cited a report from the Office of Management and Budget that estimated that roughly half of the major rules developed by independent agencies over a 10-year period provided no information on either costs or benefits. A more robust analysis would address these shortfalls, they said.
The bill’s sponsors say the approach would not threaten the independence of the agencies because a negative review by OIRA would not give the White House “veto power.” Instead, the review would go into the public record and point out deficiencies and help regulators avert lawsuits.