Senate Likely to Hang Back on Regulatory Reform Bills

House Republicans are passing measures to empower Congress to block new rules, but Democrats aren’t eager to help in the Senate.

Sen. Claire McCaskill, D-Mo.
AP Photo/Manuel Balce Ceneta
Jason Plautz
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Jason Plautz
Jan. 5, 2017, 8:20 p.m.

As Re­pub­lic­ans look to take ad­vant­age of their op­por­tun­ity from the White House and Con­gress to re­form the reg­u­lat­ory pro­cess, the House is lay­ing down a mark­er of where it stands.

Don’t ex­pect the Sen­ate to move as quickly.

The House on Thursday passed the REINS Act, which would re­quire both cham­bers of Con­gress to ap­prove reg­u­la­tions cost­ing more than $100 mil­lion a year with­in 70 days. That came a day after the House passed a bill al­low­ing Con­gress to over­turn every rule fi­nal­ized in the fi­nal 60 days of Pres­id­ent Obama’s term in a single move.

Next week, the House will bring up a third bill—the Reg­u­lat­ory Ac­count­ab­il­ity Act—that would re­quire agen­cies to choose the low­est-cost al­tern­at­ive when eval­u­at­ing rules and would block cer­tain rules from tak­ing ef­fect un­til leg­al chal­lenges had been com­pleted, which could delay them for years.

House lead­ers made the reg­u­lat­ory bills—which had passed in pre­vi­ous Con­gresses—an early pri­or­ity, a re­flec­tion of the ur­gency that Re­pub­lic­ans feel in over­turn­ing Obama-era rules. Mem­bers are already try­ing to de­cide which rules to over­turn through the little-used Con­gres­sion­al Re­view Act be­fore the 60-le­gis­lat­ive-day time­frame closes.

Re­pub­lic­ans are also look­ing to make their mark as Pres­id­ent-elect Don­ald Trump has vowed to re­form the reg­u­lat­ory pro­cess, say­ing dur­ing the cam­paign that he would is­sue a morator­i­um on new reg­u­la­tions and over­turn ex­ist­ing ones (he has also named bil­lion­aire in­vestor Carl Icahn as a spe­cial ad­visor on reg­u­lat­ory is­sues).

While Sen­ate Re­pub­lic­ans are also look­ing to move the REINS Act and oth­er reg­u­lat­ory re­form meas­ures, it faces long odds in a cham­ber that will re­quire bi­par­tis­an sup­port. Demo­crats and out­side groups have said the re­form le­gis­la­tion is too ex­treme and would es­sen­tially stop up most health, en­vir­on­ment and safety rules. Even as the House moved REINS last year, it has long been sty­mied in the up­per cham­ber (in Thursday’s House vote, only two Demo­crats backed REINS).

Sen. Claire Mc­Caskill, rank­ing mem­ber of the Home­land Se­cur­ity and Gov­ern­ment­al Af­fairs Com­mit­tee, said in an in­ter­view that she was “op­tim­ist­ic we’re go­ing to find a reg­u­lat­ory-re­form bill that could get some bi­par­tis­an sup­port,” but that the House bills were not it.

Sen. Heidi Heitkamp, the rank­ing mem­ber on the reg­u­lat­ory-af­fairs sub­com­mit­tee, has also held talks go­ing back to last Con­gress on reg­u­lat­ory re­form, in­clud­ing in­tro­du­cing bills with sub­com­mit­tee chair­man James Lank­ford that would man­date ret­ro­spect­ive re­views for rules and re­quir­ing an earli­er com­ment peri­od (three bills backed by the pair passed the com­mit­tee last Con­gress).

“There are bills be­ing worked on that per­haps might not do some of the sweep­ing things in­cluded in REINS that I think are coun­ter­pro­duct­ive,” Mc­Caskill said. “I want to help and I be­lieve in it. [Heitkamp] is draft­ing a bill that hope­fully a bunch of Demo­crats are go­ing to be able to sup­port, and if we can that could be the basis for all of us com­ing to­geth­er.”

A Heitkamp spokes­man said the sen­at­or was “con­tinu­ing to work on real bi­par­tis­an solu­tions to im­prove the reg­u­lat­ory pro­cess that could pass in the Sen­ate.”

Sen. Rob Port­man has also in­tro­duced bi­par­tis­an bills to re­quire the low­est-cost op­tion and open up more op­por­tun­it­ies for out­side in­put, an ef­fort backed by the U.S. Cham­ber of Com­merce. A Port­man aide said he was work­ing to re­in­tro­duce it again in a bi­par­tis­an fash­ion; in the past, the bill had sup­port from re­tired Demo­crat Mark Pry­or and in­de­pend­ent An­gus King.

Sen. Rand Paul, who has in­tro­duced the REINS Act, said he spoke to Demo­crat­ic lead­er Chuck Schu­mer about the bill earli­er in the week, try­ing to identi­fy areas where Demo­crats might be will­ing to barter on reg­u­lat­ory re­form.

“This is not a bill against the idea of reg­u­la­tions per se, it’s for tak­ing the power back and mak­ing sure that Con­gress ap­proves reg­u­la­tions, that we aren’t giv­ing that power up to the ex­ec­ut­ive branch,” Paul said. “You’d think there would people on both sides of the aisle that would want more le­gis­lat­ive power to come back to Con­gress.”

Home­land pan­el Chair­man Ron John­son on Thursday in­tro­duced com­pan­ion le­gis­la­tion to the “mid­night rules” bill and said in a state­ment that he hoped the Sen­ate would pass it “in the com­ing weeks.” Re­pub­lic­an whip John Cornyn said the party was “com­mit­ted” to the bills and pre­dicted that Demo­crats fa­cing re-elec­tion in 2018—in­clud­ing Heitkamp—might “find it in their own in­terest to be more col­lab­or­at­ive” on the con­ser­vat­ive bills.

But a cal­en­dar packed with Cab­in­et con­firm­a­tions and a budget mean that the GOP-backed reg­u­lat­ory bills will likely linger without a sud­den wave of Demo­crat­ic sup­port.

Un­like more nar­row reg­u­lat­ory ef­forts aimed at more trans­par­ency or avoid­ing du­plic­a­tion, lib­er­als warn that these bills would rob agen­cies of their in­de­pend­ence and open up rules to the polit­ic­al pro­cess. Robert Weiss­man, pres­id­ent of Pub­lic Cit­izen, said in a state­ment that the bills would “wipe out our abil­ity to es­tab­lish and en­force pub­lic pro­tec­tions—with cata­stroph­ic con­sequences for our health, safety, and eco­nom­ic se­cur­ity.”

The slow move­ment of Con­gress and abil­ity for out­side groups to pres­sure law­makers would likely halt all man­ner of reg­u­la­tions, in­clud­ing many en­vir­on­ment­al reg­u­la­tions that have drawn the ire of in­dustry groups.

Andy Koenig, the vice pres­id­ent of policy for Free­dom Part­ners, said with Trump, this was a “new era” for reg­u­lat­ory re­form, and that even with a pres­id­ent un­likely to en­act a broad reg­u­lat­ory agenda, the time was ripe to ex­am­ine the pro­cess.

“There should be big­ger reg­u­lat­ory re­form that is fo­cused on tak­ing a look at years and years of reg­u­la­tion big and small … and there should be bi­par­tis­an sup­port,” Koenig said. “Hav­ing an­oth­er check [on rules] may not be ne­ces­sary un­der this pres­id­ent, but that doesn’t mean safe­guards shouldn’t be in place.”

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