Today, Sens. Rob Portman (R-OH), Mark Pryor (D-AR), and Susan Collins (R-ME), and Reps. Collin Peterson (D-MN) and Lamar Smith (R-TX) announced their intention to propose a major revision of the Administrative Procedure Act – the basic legal framework that defines how federal rules are made – that would prevent or delay by years important health, safety, and environmental standards. It's hard to imagine a more damaging attack on the federal government's responsibility to protect the public from a wide range of threats.

The most recent draft of the forthcoming bill, currently known as the Regulatory Accountability Act of 2011, is a “solution” in search of a problem. The proposal is based on dangerous and misguided assumptions about the connection between regulations and job creation. For decades, economic studies have shown consistently that regulations do not negatively impact employment. In fact, some standards and environmental protections actually create jobs and generate new industries. Corporations and banks are sitting on more than a trillion dollars instead of investing those resources and creating jobs because demand is weak, not because of regulations.

A recent survey of small business owners by the Small Business Majority reveals that they do not believe regulations are affecting their ability to grow their businesses. Rather, economic uncertainty (i.e., lack of demand for their products) and the rising cost of doing business are what they worry about most. Likewise, in an August survey of business economists, a large majority reported that the current regulatory climate in this country is good for business and the economy.

If the provisions of the proposal (as described in a fact sheet from Portman's office) become law, they will result in a near-moratorium on rules by creating even more obstacles for agencies to overcome in issuing standards that keep us safe from contaminated food, product defects, and polluted air and water. In addition, the proposal would shift the locus of regulatory decisions to the courts and out of agencies' hands by providing multiple new opportunities for deep-pocketed corporate interests to challenge agencies at nearly every step of the process. When such special favors are granted to special interests, everyday Americans are further shut out of the regulatory process, giving them less of an opportunity to participate in this essential function of democratic governance.

For example, the proposed bill could allow cost-benefit analysis to be reviewed by the courts at both the proposed and final stages of the rulemaking process. If this happens, rules would not only languish for years, but courts would be empowered to substitute cost considerations for the health and safety of the American people – the basis of important laws like those that protect workers and our environment. This court-dominated process would be incredibly costly, wasting resources instead of enabling agencies to address problems in a timely and responsive fashion. This shift would favor wealthy business interests, not small businesses. The proposal's judicial review provisions would also shift the responsibility for agency oversight from Congress to the courts and swamp an already overburdened federal court system.

If Sens. Pryor, Portman, et al. want to constructively reform the federal regulatory process, they should work to reduce the barriers that make it difficult for agencies to fulfill the missions they’ve been assigned: to enforce the rules that protect the American people from environmental, chemical, and workplace dangers and establish the foundations for healthy economic growth.

Editor's Note: This post has been updated to clarify the potential scope of judicial review that the Regulatory Accountability Act would write into law.

President Obama's Jan. 18 Executive Order 13563, "Improving Regulation and Regulatory Review" (E.O. 13563), instructed federal agencies to develop plans for the ongoing review of existing regulations to identify rules that are "outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them." On Aug. 23, the administration released final retrospective review plans, submitted by 26 agencies, that contain the list of rules to be addressed in accordance with the E.O. The plans also include descriptions of how the agencies intend to incorporate ongoing retrospective review processes into their administrative procedures. OMB Watch now has a webpage where the public can read about the plans of key health, safety, and environmental agencies responsible for safeguarding the public.

The page contains an overall assessment of the plans, links to source documents, and analyses of the individual plans of three agencies: the U.S. Environmental Protection Agency (EPA), the Food and Drug Administration (FDA) (in the Department of Health and Human Services (HHS)), and the Department of Labor (DOL).

The public interest community has been concerned that the “look-back” process would encourage some agencies to weaken important health and safety protections and/or have a “chilling” effect on agencies and cause them to pull proposed rules from the review process.

Overall, agencies stuck to their missions and did not cave to political or industry pressure, although some included proposed new rules in the review process. The final plans closely reflect the preliminary plans released by agencies in May. Many of the agencies found inefficiencies in paperwork submission procedures, approval processes, or outdated technology requirements that can be fixed through minor changes to existing regulations. Others found that better coordination between departments or among agencies could eliminate redundancies and streamline procedures.

Many agencies were careful to provide public comment periods and some used the comments to inform the rules they targeted for action. Strikingly, the vast majority of comments provided were by representatives of regulated industries, indicating that the retrospective review process allowed for additional opportunities for special interests to attempt to influence the rulemaking process and the standards that keep our families and communities safe from harm. Despite this, many agencies stood firm and recognized that their mission to protect the public had to come first.

Sen. Joseph Lieberman (I-CT), chair of the Senate Committee on Homeland Security and Governmental Affairs, opened a committee hearing on regulation with the quote above. His committee was conducting a hearing today entitled Federal Regulation: A Review of Legislative Proposals.

Lieberman called the hearing to have fellow senators discuss their own proposals for how to fix a regulatory system that many of them think is the cause of the current economic troubles the country faces. The first panel had Sens. Susan Collins and Olympia Snowe (R-ME), Rob Portman (R-OH), Pat Roberts (R-KS), David Vitter (R-LA), Rand Paul (R-KY), and Mark Warner (D-VA) present various ideas that would further stifle the regulatory process and make it harder for agencies to fulfill their congressionally mandated responsibilities. Most of these proposals have been part of the basket of items on the agenda of big business associations like the U.S Chamber of Commerce.

Many of the senators continue to use old scripts that cite a figure about the costs of regulations that has been discredited. Although all the senators are likely proponents of the use of cost-benefit analysis, most of them continue to ignore the benefits side of these calculations and the real facts behind regulations: rules in this system, with few exceptions, do not pass muster if the benefits do not substantially outweigh the costs of those regulations.

A hearing entitled Federal Rulemaking and the Regulatory Process that was scheduled for today was postponed because one of the witnesses is ill. The House Committee on the Judiciary's Subcommittee on Commercial and Administrative Law had scheduled the hearing, the first congressional hearing to focus on regulatory process issues in the Obama administration. OMB Watch's executive director, Gary Bass, was scheduled to testify among others.

The subcommittee had extended to the Office of Information and Regulatory Affairs (OIRA) an invitation to testify but the administration declined to participate. We don't know if OIRA declined because of scheduling conflicts or other reasons. (Hearings are very often scheduled at the convenience of high-ranking government officials to ensure that key witnesses can appear.)

Here's hoping that the postponement provides another opportunity for the subcommittee to issue an invitation to OIRA, and that the OIRA administrator, Cass Sunstein, will be able to appear. In keeping with the administration's emphasis on transparency and government accountability, a congressional oversight hearing would be a great opportunity for OIRA to highlight its actions, and for Congress to ask questions of the administration. Regulatory oversight hearings rarely occur and the administration should participate when they do occur.

Additionally, we want to extend a “thank you” to the Judiciary Subcommittee for planning an oversight hearing on federal rulemaking. Regulations are about enforcing the laws passed by Congress and ultimately about protecting the public. The Bush administration was widely criticized by the public interest community as favoring less regulation, tilting regulations in favor of industry when it had to regulate, and reducing enforcement of regulations on the books. The Obama administration promised to curb the influence of special interests and get the regulatory machinery moving again to protect health, safety, and the environment.

While a little over one year may be too early to fully assess progress made by the Obama administration, it is appropriate for Congress to provide vigilant oversight.