Yesterday, the House Science and Technology Committee subcommittee on Investigations and Oversight held a long-awaited second hearing on President Bush's recent changes to the regulatory process. Much of the hearing focused on the role of the Regulatory Policy Officer (RPO) — a position with newly enhanced responsibilities.

The changes state "no rulemaking shall commence" without the approval of the RPO. Steve Aitken, former acting administrator of the White House's Office of Information and Regulatory Affairs, told the panel that the Clinton administration had issued a dictate forbidding agencies to "issue" rulemakings without similar approval. Rep. Dana Rohrabacher (R-CA) latched on to this as reason to drop the whole case against the Bush administration.

Reg•Watch has checked its dictionary, and apparently "issue" and "commence" are two different verbs with two different meanings. Exactly when a rulemaking commences is unclear.

This kind of confusion begs the question: What transparency measures will be included in this process? Committee Chairman Brad Miller (D-NC) expressed legitimate concern that RPOs "can smother regulatory efforts in the crib before an agency can even begin considering a regulatory action."

In the hearing, OMB Watch Executive Director Gary Bass recommended several improvements in transparency. Though OMB Watch fully opposes the changes embodied in the new E.O. and Good Guidance Practices Bulletin, if they are to exist the American people should be allowed to see into the process. At the very most, Congress should act to nullify these changes. At the very least, it should shine more sunlight on the regulatory process.

As Reg•Watch blogged yesterday, the House Science and Technology Committee subcommittee on Investigations and Oversight will hold a hearing on President Bush's changes to the regulatory process. OMB Watch Executive Director Gary Bass will be testifying. Watch the hearing live starting at 10:00 a.m.

On Thursday at 10:00 a.m., a House panel will examine President Bush's recent changes to the regulatory process. Gary Bass, Executive Director of OMB Watch, is scheduled to testify.

The panel (the House Science and Technology Committee subcommittee on Investigations and Oversight) has looked at Bush's amendments to the regulatory process before, but this hearing will focus on the Regulatory Policy Officer (RPO) — a presidentially appointed regulatory taskmaster housed in each federal agency. Here are the basic facts on the RPO:

• President Clinton's Executive Order 12866 created the RPO position to "foster the development of effective, innovative, and least burdensome regulations."
• Bush's amendments to E.O. 12866 have required agencies to designate a presidential appointee to be its RPO
• Bush's amendments also increased the authority of the RPO by stating "no rulemaking shall commence … without the approval of the agency's Regulatory Policy Officer."

OMB Watch has expressed several concerns related to the RPO changes. Requiring RPOs to be presidential appointees allows the White House to exert greater influence in the day-to-day operations of federal agencies. Whereas some agencies formerly used experts on particular issues to manage regulatory proceedings, political motives will now set the tone.

Furthermore, agencies must designate a current presidential appointee, but the individual is not subject to Senate approval for the new position. This is tantamount to promoting an undersecretary to a cabinet-level secretary without Senate confirmation. Bass's testimony will focus on the transparency of regulatory decision making. Under the old system, White House regulatory directives were sent to agencies by the Office of Information and Regulatory Affairs. These directives are publicly available on the White House website. Now, because the RPO must approve commencement of regulations, the political chokehold is in the agencies. It is conceivable a regulation could be completely stifled by the RPO without announcement or public input. The public needs greater clarification on just what these changes mean for the basic democratic right of access to information.

Not to be outdone by Alberto Gonzales, Stephen Johnson appeared before the Senate yesterday and achieved new levels of obstinacy.

The Senate Environment and Public Works Committee questioned Johnson, the administrator of EPA, about the Supreme Court's recent ruling affirming the agency can regulate carbon emissions under the Clean Air Act. The legislation instructs EPA to regulate harmful air pollutants.

The hearing started as a back and forth about the speed with which EPA would pursue regulation. Democrats want swift action and urged Johnson not to wait for potential greenhouse gas legislation. Johnson refused to commit to a timetable preferring to move with the Bush administration's usual sloth.

Things could have stymied there, but Johnson chose to antagonize the committee further by abandoning reasonable thought. Since the Clean Air Act only requires the regulation of emissions harmful to the public, EPA would not have to regulate if it determined carbon not to be harmful. But that would be a ludicrous notion, wouldn't it? The LA Times reports:

As to whether the EPA will regulate carbon emissions nationwide, Johnson said the agency must first determine whether greenhouse gas emissions endanger public health or welfare.

That remark drew criticism.

"Surely, you acknowledge that global warming does endanger public health," Sen. Joe Lieberman (I-Conn.) said.

Johnson refused to say whether he considered global warming the No. 1 environmental problem. That rankled Sen. Sheldon Whitehouse (D-R.I.).

"You astonish me," Whitehouse said.

Amen to that, Mr. Whitehouse.

Democrats want swifter EPA action on emissions standards [LA Times]

Both chambers of Congress will examine workplace safety this week. The Bush administration's Occupational Health and Safety Administration has been woeful in promulgating new regulations, but Democrats are beginning to ramp up their oversight efforts. Read a preview of this week's hearings from The Pump Handle blog.

Yesterday, the Senate Health, Education, Labor and Pensions Committee voted favorably to reauthorize the Prescription Drug User Fee Act (PDUFA). PDUFA allows FDA to collect money from the drug industry in order to pay for safety tests of new drugs. While this may sound like a good way for the government to raise funds, the money comes with strings attached. The drug industry, to some extent, dictates the timetable for drug approval.

PDUFA reauthorization is one part of the Food and Drug Administration Revitalization Act (S. 1082). Four Republicans and one independent joined all committee Democrats in voting to report the bill to the full Senate. If enacted in its current form, the legislation would:

• Reauthorize PDUFA for another five years. FDA will be able to collect more user fees from the drug industry, per the agency's recommendation.
• Allow FDA to review TV ads for new drugs (you know, the commercials that list a variety of unpleasant side effects). Some Republicans have raised First Amendment concerns in regard to this provision.
• Strengthen FDA's ability to monitor drug safety after the drugs reach the market.
• Reauthorize MDUFMA, a law similar to PDUFA but for medical devices instead of drugs.
• Create special provisions for the study of pediatric drugs and medical devices.
• Place medical marijuana under the regulatory purview of FDA. Sen. Tom Coburn (R-OK) added this provision as an amendment.

The bill will now move to the Senate floor. Bill cosponsor Ted Kennedy has also vowed the final bill will include language to allow FDA to approve generic drugs, a provision the drug industry adamantly opposes. The House is still developing its PDUFA reauthorization bill.

Be sure to check out the latest issue of our biweekly newsletter, The Watcher. Regulatory policy articles this time:

Recess Appointment Makes Dudley Head of White House Regulatory Policy Office

Courts Rebuke Bush Administration's Forest Actions

EPA Issues another Delay in Contaminant Regulation

Today, a House panel held a hearing examining the reauthorization of the Prescription Drug User Fee Act (PDUFA). PDUFA forces the drug industry to pay for safety studies of new drugs, but also allows the industry to dictate timelines for approval.

Some members of the House Energy and Commerce Committee subcommittee on Health expressed concern about the influence industry can exert through user fees. However, the general tenor of the hearing was that of assuming Congress would reauthorize PDUFA, and user fees would actually increase.

It would have been nice to see an intense debate over the validity of user fees in the first place. Why is the FDA relying on industry money to do its job, and why can't Congress appropriate adequate funds so the agency doesn't have to?

These are the kinds of questions the George Washington University's project on Scientific Knowledge and Public Policy (SKAPP) is asking. Medical professionals from SKAPP and elsewhere are opposing reauthorization of PDUFA. Read more here.

On the other side of Capitol Hill, the Senate Health, Education, Labor and Pensions Committee will hold a hearing tomorrow to markup PDUFA reauthorization. A bill strengthening FDA's drug review process is likely to be lumped in with PDUFA. Stay tuned to Reg•Watch for more.

Sam•Fox (sam' foks') vt. 1. To install by recess appointment shortly after pretending to be cooperative by withdrawing a nomination.

Yesterday, the White House withdrew the names of two controversial officials nominated for posts in the EPA. Environmentalists criticized the nominations of both William Wehrum and Alex A. Beehler, and neither nominee appeared to enjoy support among Senate Democrats.

Under normal circumstances, this would be good news. But with President Bush circumstances are rarely normal. Bush recently showed false signs of cooperation by withdrawing the nomination of Sam Fox, only to appoint him during the following recess. The recess appointment of Susan Dudley was equally deceitful. With that in mind, who knows what the future holds for Wehrum and Beehler. The LA Times reports:

Congressional sources and industry lobbyists said they were not sure whether Bush intended to use the same tactic for Wehrum and Beehler.

"That was the plan all along," said a lobbyist with ties to the administration. Wehrum's post expires July 7, and Congress takes its summer break in August. But anger in Congress over last week's recess appointments may have changed the equation, several said.

Stay tuned to see if Bush will SamFox Wehrum or Beehler into the EPA.

Yesterday, the Senate Appropriation Committee held a hearing to examine the budget of the White House Office of Management and Budget (not the federal budget, but the budget of OMB itself). During the hearing, Subcommittee Chairman and Senate Majority Whip Dick Durbin (D-IL) questioned OMB Director Rob Portman on a number of issues. These included the recess appointment of Susan Dudley to be the administrator of the Office of Information and Regulatory Affairs (OIRA) at OMB, and the installation of Regulatory Policy Officers (RPOs) in federal agencies as required by recent White House changes to the regulatory process.

Durbin addressed OIRA at large, calling its work "Freakonomics to the 10th power." He then pointed out some of Dudley's anti-regulatory positions and asked Portman to identify the need for presidentially appointed regulatory foot-soldiers — the RPOs — to invade each agency. Durbin said the White House appeared to be "attempting to take away the regulatory authority of agencies."

Unfortunately (but not surprisingly), Portman evaded questioning. He gave a roundabout answer on Dudley, and did not appear to be familiar with her record. By the time Portman was done avoiding the Dudley issue, everyone had forgotten about the RPO question, and it was never answered. Almost three months after the amendments to the regulatory process, no senior administration official has answered any questions or said anything meaningful about the changes.

In today's issue of Roll Call, Norm Ornstein — a political pundit and scholar at the conservative American Enterprise Institute — articulates a rather damning assessment of recess appointment power (reprinted on the AEI website). Ornstein points out the danger of precedent in forming executive power. He then calls for Congress to stand up against President Bush's most recent batch of recess appointments including that of Susan Dudley.

Every time a president abuses a power like this one, stretching the circumstances under which he will use recess appointments, it becomes a precedent for his successors, who will use his actions as a base point to stretch the power even further. The more the power is used with impunity, the more the core principles of the separation of powers are eroded.

So what is a Congress to do? The only answer is to use its own powers to make clear to the president that there is a cost, and a serious one, to such behavior.

Specifically, Ornstein suggests hitting the White House and these illegitimate appointees where it hurts: in the wallet. Congress could easily withhold the salary and other perks from embattled former nominee Sam Fox, and otherwise "make White House operations more difficult without cutting essential services."

Ornstein also suggests this whole recess appointment mishigas is unconstitutional. In addition to the explicit language of Article 2 Section 2 Clause 3, Orstein cites America's original political genius, Alexander Hamilton. In Federalist paper No. 67, Hamilton articulates the caution with which America should consider the power of the recess appointment.

Yesterday, President Bush recess appointed Susan Dudley to be the White House's regulatory czar. The announcement comes just days after Senate members indicated they would consider the Dudley nomination in the normal fashion.

Sen. Joe Lieberman isn't happy with the president's blatant disregard for checks and balances. Lieberman chairs the Senate Homeland Security and Government Reform Committee, which was responsible for Dudley's confirmation. A spokeswoman for Lieberman, Leslie Phillips, released the following statement:

The Administration's decision to recess appoint Susan Dudley shows disrespect for the advise and consent responsibilities of the U.S. Senate and for the American people, on whose behalf the Senate acts. The power to recess appoint should not be used to avoid any scrutiny of Presidential nominees. Senator Lieberman was proceeding with Ms. Dudley's nomination, and there has been no suggestion that she would be denied an up-or-down vote in the Senate.

President Bush just installed Susan Dudley as White House regulatory czar through a recess appointment. Dudley will now serve in the White House Office of Management and Budget as administrator of the Office of Information and Regulatory Affairs (OIRA).

Dudley is a triple threat when it comes to the federal regulatory process.

• First, she is ideologically opposed to regulation of any kind. She is likely to roll back countless public protections, and will be loath to support any new rulemakings.
• Second, Dudley is over-zealous when it comes to regulatory review and cost-benefit analysis. The policies she will pursue as OIRA administrator will likely result in "paralysis by analysis."
• Third, Dudley is a friend of industry, and corporate executives are likely to have unprecedented access to the regulatory process.

Moreover, Bush's choice to use a recess appointment circumvents Congress and shows disregard for the democratic process. "At a time when the American people are growing more frustrated with back-room, special interest dealings at the White House, Bush has bypassed the transparency afforded by the Senate confirmation process," said Rick Melberth, OMB Watch's Director of Regulatory Policy.

For more, read the OMB Watch press release.

Related posts: "Lieberman Unhappy with Bush Choice to Bypass Senate on Dudley" — "Dudley on the Editorial Pages"

Be sure to check out the latest issue of our biweekly newsletter, The Watcher. Regulatory policy articles this time:

OMB Manipulated Climate Science, Report Says

Miners Detail MSHA's Failings in Emotional Testimony

FDA Issues New Conflict of Interest Guidelines

The Wall Street Journal (subscription) is reporting President Bush will recess appoint Susan Dudley to be White House regulatory czar, and that the move is likely to occur today. Meanwhile, the Washington Post's "In the Loop" column is reporting Sen. Joe Lieberman's committee in charge of the nomination will move to consider Dudley sometime after the recess. Reg•Watch reported similar rumors last week.

What gives? Why would Bush make a recess appointment if the nomination is likely to proceed in the normal fashion? Reg•Watch has no choice but to cynically assume Bush is circumventing the Senate instead of leaving Dudley's confirmation to chance. Dudley's nomination stalled in the Republican-controlled Senate in 2006, and confirmation by the new Senate is far from a sure thing. The only way to ensure Dudley can push her anti-regulatory agenda as head of the powerful Office of Information and Regulatory Affairs is to appoint her during a Congressional recess.

Surely such underhanded political maneuvering is not what the founding fathers had in mind when they provided the president with recess appointment power.

Posted by Matt Madia, 09:47:53 AM

Monday, April 02, 2007