The Scariest Piece of Federal Legislation That You’ve Never Heard Of
If Steve Bannon and Grover Norquist had a love child, it would be the bill that quietly passed out of committee this week in the U.S. Senate. Their dark vision of, per Norquist, a government small enough to drown in a bathtub — or, as Bannon has threatened, “the deconstruction of the administrative state” — is closer to reality today with advancement of the misleadingly named “Regulatory Accountability Act” or RAA.
The measure launches a broad attack on the norms of decision-making by government agencies — including those that protect our air, food, civil liberties, water, health, safety, workers, and financial well-being. Even now, the government’s ability to react to public needs is hampered by mountains of red tape and constantly subject to pot shots from lobbyists. Agencies labor mightily to improve the lives of Americans by developing safeguards as they are told to by Congress — whether it’s ozone standards that improve air quality to help millions of people suffering from asthma or rules that reduce food-borne pathogens in meat.
The bill would drop the regulatory equivalent of a cluster bomb on the functioning of government. It would make it nearly impossible for agencies to adopt new safeguards on any subject — including those explicitly required by Congress. This would alter the operations of government more profoundly than any piece of legislation since the Great Depression.
With all the Trump administration controversies, the legislation has gotten almost no attention, but it should. A House version of the bill passed with little fanfare in January. The bill’s sponsors are currently short by only six votes to prevail in the full Senate — a frighteningly small margin given the high stakes for 325 million Americans.
At the bill’s core is a new requirement that agencies prioritize minimizing costs for corporations above maximizing benefits to the public when making decisions. The bill requires officials to give short shrift to the potential good that could be done by a stronger approach, including the lives that would be saved or hospitalizations and illnesses prevented. When it comes to things like meat inspection, cheapest doesn’t cut it.
It also fails to account for intangible but important values like consumer confidence in the safety of things like our food (a confidence that benefits industry as well as eaters). These benefits can be hard to predict. For instance, the Food and Drug Administration was recently unable to quantify benefits for a rule to prevent terrorist attacks on food, as it was not clear how many attacks there might be. Although such rules clearly help consumers, the industry, and national security, they would be stopped in their tracks by the RAA.
The bill also would erect new roadblocks to agency action. Current law gives industry and the public ample time to comment and challenge new rules. For instance, common-sense transparency rules that require calorie labeling on chain restaurant menus are still not in effect seven years after being enacted by Congress. Rules aren’t always counter to business interests: companies also often benefit from a uniform federal approach, instead of a patchwork of state and local regulations. In fact, that’s why the restaurant industry, once an opponent of menu labeling, became an ardent supporter of federal legislation.
The RAA would allow regulated industries — or even individual cranks — to demand trial-like adversarial hearings to stop agencies from creating or changing a rule. Lawyers and lobbyists could cross-examine public officials charged with protecting consumer health and safety. That would both block new rules and tilt the process even more toward industry and other deep-pocketed special interests. The RAA would also make it easier for disgruntled companies to take the government to court to block new consumer protections. Today, courts typically defer to the expertise of agencies, which must marshal the evidence and are accountable to Congress. Instead, the bill invites judges to substitute their own view of the facts for those of the scientists and other experts who developed the rule.
A little-discussed part of the bill would also bar agency officials (and private groups that receive government grants) from expressing opinions on pending rules. Although it excludes allegedly “impartial” statements, this dangerous gag rule could substantially chill officials’ free speech, cutting off the flow of information to media and consumers.
Finally, the bill puts politics over science by giving the White House even more latitude to meddle in agency affairs. Current practice already gives industry a one-stop shop that is often used to block, delay or undermine critical safeguards. The RAA would widen this kind of interference to more kinds of agency activity and deepen its potential for harm.
Sometimes, the forces of darkness arrive in an obscure form. Although only a few Washington insiders have heard of the Regulatory Accountability Act, the word must get out. Norquist and Bannon’s wrecking-ball agenda is obvious: to make government grossly ineffective — drowning good intentions in meaningless paperwork and paralysis — then use the resulting mess as proof that our government fails its people. We must not let such an insidious, cynical, and toxic bill become law.