The Senate Governmental Affairs Committee voted to send comprehensive regulatory "reform" legislation (S. 746), sponsored by Sens. Fred Thompson (R-TN) and Carl Levin (D-MI), to the floor over the objections of most committee Democrats. The committee did not, however, have time to take up the regulatory accounting bill (S. 59) -- which requires OMB to conduct a cumulative cost-benefit analysis -- as scheduled and will do so at a later date. Besides Levin, Sen. Max Cleland (D-GA) was the only Democrat to vote to report the bill. Given the diverse functions that federal agencies perform, a comprehensive approach to reforming our regulatory system, such as that taken in S. 746, would inevitably lead to unintended consequences. There are simply too many things captured at once, from worker health and civil rights to food safety and environmental protection. This point was made repeatedly during the markup through a series of amendments (most of which, not surprisingly, failed) from opponents of the bill, which are summarized below: 1. Peer review. The Occupational Safety and Health Administration (OSHA) conducts peer review in the form of an open public hearing, which maximizes transparency. The Thompson/Levin bill, however, would require an additional "peer review," which would be done behind closed doors and before any notice to the public of a proposed standard. Lieberman offered an amendment addressing exactly this point. Under the amendment, OSHA's public hearing process would fulfill S. 746's peer review requirement. Unfortunately, Thompson argued that peer review should be conducted before public notice of a proposed standard, and the amendment was defeated 6-10, largely along party lines (with the exception of Levin, who voted with the majority). Cleland also offered a peer review amendment that would bar those with a "direct conflict of interest" from serving on the panels, but it also failed 6-9, with no proxy from Specter. 2. Risk assessment. For the first time, S. 746 would statutorily require each agency to conduct a risk assessment for every major rule "the primary purpose of which is to address health, safety or environmental risk." The problem here is that, in many cases, agencies could end up doing a risk assessment -- measuring the level of risk associated with a particular hazard -- in cases where no reasonable person would expect one. Lieberman offered an amendment with Akaka to clarify that a risk assessment does not need to be conducted if a standard is not risk-based. For example, Lieberman pointed out that in amending the Clean Air Act in 1990, Congress had decided to remove certain requirements for risk assessment relating to toxic air pollution because the harmful effects were clear and action was needed. Rather, standards were to be set based on existing technologies available for addressing the problem. S. 746 could have the effect of nullifying this judgement, Lieberman said, and require EPA to do extensive, time-consuming risk assessments for these dangerous toxic chemicals. The amendment failed 9-7 along party lines, except Specter joined the minority and Levin joined the majority. During the hearing on S. 746, Thompson and Levin indicated that agencies would not need to conduct a risk assessment for right-to-know regulations -- which inform communities and workers about health hazards -- even though the bill's language would seem to require one ("the primary purpose ... is to address health, safety or environmental risk."). This was helpful, but it underscores the fundamental weakness of one-size-fits-all regulatory "reform." To clarify this particular point, Lieberman offered another amendment exempting right-to-know regulations, which also failed 9-7, with Specter again joining the minority and Levin joining the majority. But Thompson and Levin did agree to insert report language that would clarify that right-to-know regulations were not intended to be covered by the bill. 3. Exemptions. Torricelli offered an amendment that would solve much of the concerns with the bill by exempting food safety, civil rights, worker safety, and environmental protection from its requirements. Torricelli pointed out that S. 746 contains a number of other exemptions, including most economic regulation, such as those governing banking. Torricelli said he understood the merits of these exemptions, but that food safety, civil rights, worker safety, and environmental protection were also unique problems that could not be adequately measured by the bill's analytical requirements and merited exemption. Levin responded by saying that a cost-benefit analysis under S. 746 could include both quantifiable and non-quantifiable factors (even though the language pushes for quantification). However, doing any sort of cost-benefit analysis for something that should be guaranteed like our civil rights raises serious concerns. Not surprisingly, the amendment was defeated 6-10, with Specter joining the minority, and with Edwards and Levin joining the majority. This amendment sparked a heated debated during which Sen. Susan Collins (R-ME) said she was offended because she felt Toricelli's effort implied that her support of the Thompson/Levin bill meant that she is not supportive of public protections, such as food safety. Sen. Richard Durbin also offered an amendment specifically exempting regulation of tobacco -- the risks of which are well known -- from the bill's requirements. But that amendment was also defeated 6-10 with Specter again joining the minority, and Edwards (along with Levin) joining the majority. 4. Judicial review. Lieberman offered an amendment to limit the scope of the bill's judicial review provision, which grants new avenues to regulated entities to sue agencies over regulatory matters. In explaining his amendment, Lieberman pointed out that Thompson and Levin have repeatedly stated that it is their intent for a reviewing court only to determine whether the bill's various analytical components were completed. To meet this objective, Lieberman proposed language clarifying that a reviewing court could remand or invalidate a rule only if the agency failed entirely to perform the required analysis. This would bar a court from delving into the analytical particulars. Moreover, Lieberman's amendment struck an agency's "cost-benefit determination" as a subject for judicial review -- the inclusion of which could be seen by a court as an invitation to evaluate an agency's scientific or economic judgements. In the end, the amendment was defeated 6-10, along party lines with the exception of Levin. 5. Resources. Durbin made the point that the bill's requirements would force agencies to use more resources defending their decisions in court and on analysis that may be unnecessary or redundant. To make sure that agencies have adequate resources to fulfill their core missions, Durbin proposed an amendment to require a study of the bill's impact on administrative costs, which could help inform appropriators. Sen. George Voinovich (R-OH) said he was supportive of the idea, recalling that when he was governor the Ohio EPA received numerous complaints and when an evaluation was done, it was determined that more resources were needed to fulfill its responsibilities. Thompson and Levin indicated that they thought the bill would actually cut costs and suggested the inclusion of an assessment of administrative savings. Durbin said he would be willing to make such a change. Levin also suggested that the implementation of the evaluation be done in 2002 (instead of immediately), which Durbin also agreed to. In the end, the Committee voice voted in support of the amendment, although specific language is still to be worked out. 6. OMB disclosure. S. 746 moves in the wrong direction on OMB accountability, actually lowering the bar on requirements in place since 1986, and contains no meaningful time-constraints on OMB review of agency rules. OMB's past abuses have been well-chronicled over the years. From worker safety to environmental regulation to consumer protection, rules have languished there, particularly prior to the Clinton Administration. In fact, that is why the Clinton Administration established a rigid time-frame through its 1993 executive order. For this reason, Sen. John Edwards (D-NC) offered an amendment that would retain the time-constraints on OMB review. Thompson and Levin, who had included such time-constraints in last year's bill, indicated that they had no problem with the amendment, but that the change was made at the request of the administration as part of a deal to remove the threat of presidential veto. Levin suggested that they all sit down with the administration and see what could be worked out, and Edwards agreed to withdraw his amendment.