The Debate over Public Protections: Is the Middle Caving?
When the 112th Congress returns to Washington, the debate over public protections is certain to continue. However, developments within the Obama administration and Congress over the past few weeks are likely to change the conversation in 2012.
In 2011, the Office of Information and Regulatory Affairs (OIRA) directed federal agencies through a "look-back" process to satisfy the requirement of E.O. 13563 that agencies "modify, streamline, expand, or repeal" rules that are supposedly "outmoded, ineffective, insufficient, or excessively burdensome." As this year begins, OIRA is initiating a new action under the executive order to ensure that regulations are "accessible, consistent, written in plain language, and easy to understand."
In a Jan. 4 memo, OIRA Administrator Cass Sunstein directed all executive branch agencies to include "straightforward executive summaries" in the preambles of proposed and final rules that are "lengthy or complex." In a blog post, Sunstein wrote that the memo is "a major step in the direction of greater clarity and simplicity." "The use of clear, simple executive summaries," he continued, "will make it far easier for members of the public to understand and to scrutinize proposed rules – and thus help to improve them." The memo includes a model template for the executive summaries, which must include: the purpose of the rule, a summary of the major provisions of the regulatory action in question, and a summary of the costs and benefits of the rule (including a table summarizing quantitative and qualitative costs and benefits for economically significant rules).
Ideally, this action will help produce rules that are clearly articulated by agencies and easily understood by members of the public, but OIRA should proceed with caution and ensure that necessary factual or technical information is not removed from the text of rules.
One key example illustrates what can happen when simplification is not done with care. In 1999, a Bureau of Land Management regulation on leasing and developing federal land for geothermal power was rewritten into plain language and won Vice President Gore's "No Gobbledygook Award." But, as the American Bar Association's Section on Administrative Law and Regulatory Practice pointed out, the rewrite stripped away important information about permit application requirements, what standard would be used to evaluate applications, and where the public could go to learn more about the program.
As 2011 drew to a close, two different bipartisan pairs of senators announced that they had developed legislation on regulatory reform, but both are predicated on the misleading rhetoric that regulations cost jobs and hinder growth.
On Dec. 7, 2011, Sens. Claire McCaskill (D-MO) and Susan Collins (R-ME) introduced the "Bipartisan Jobs Creation Act," S. 1960. The bill proposed to trade an extension of the payroll tax for a delay in the implementation of an air quality and public health standard that has been a frequent target of Republican attacks.
Sens. Mark Warner (D-VA) and Jerry Moran (R-KS) took a slightly more measured approach in their "Start-Up Act," S. 1965, by specifically targeting "those regulations which discourage start-up businesses." However, neither was able to identify a single example of a federal regulation that actually discouraged business development.
Including anti-regulatory provisions in a job creation bill feeds the misguided idea that regulations cost jobs, despite evidence to the contrary. Research reviews show that, overall, public protections have a small positive impact on employment. Multiple surveys of small business owners tell us the reason small businesses aren’t hiring is due to sluggish demand, not so-called “over-regulation.”
Throughout 2011, partisan anti-regulatory activists were relentless in attacking the standards and safeguards that keep Americans safe. The entrance of moderate Democratic senators into the discussion – on the anti-regulatory side – represents a new threat to our system of public protections.