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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