Senate Likely to Hang Back on Regulatory Reform Bills

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.”