EXPERTS Act: A Necessary Reform to Halt Corporate Corruption in Rulemaking and Elevate the Public’s Support for Strong Safeguards
By Katie Tracy
On November 19, Senator Elizabeth Warren (D-Mass.) and Representative Pramila Jayapal (D-Wash.) introduced the EXPERTS Act (S. 3210; H.R. 6145), critical legislation that would modernize the process federal agencies use to develop vital safeguards like those that provide clean air and water, safe products, healthy workplaces, fair pay, and truth in lending, to name just a few. Formerly titled the Stop Corporate Capture Act, the legislation would achieve key improvements to the rulemaking process by lifting up the voices of the American people and closing loopholes that favor corrupt corporations and their lobbyists.
The EXPERTS Act is packed with crucial reforms to the federal rulemaking process, any one of which would represent a significant improvement over the status quo. Altogether, the bill would revitalize and substantially strengthen this crucial system for federal policymaking, delivering benefits and services the American people want and deserve. Some key features of the legislation include:
Establishes an Office of the Public Advocate. An important element of the bill is that it would establish an Office of the Public Advocate – a new office whose core mission would be to amplify the public’s voice in the rulemaking process. The bill would ensure agencies hear from the public by tasking a presidentially appointed and Senate-confirmed National Public Advocate with ensuring the public knows of opportunities to participate, advocating for a more accessible public comment process, and facilitating access to rulemaking by communities that have historically been excluded from the process. When agencies listen to individuals and communities harmed by companies that pollute air and water, operate dangerous worksites, or deceive and scam consumers, for example, they gain a deeper understanding of the importance of their work and can better ascertain the benefits their proposed rules will offer. In short, an agency’s final rule is far better when it responds to the needs of the American people.
Stops Corporate Pseudo Science from Undermining Agency Decisions. The bill would prevent corporations from submitting pseudo science into agency records, which can significantly distort agency decision-making, leading to substantially weaker rules that fail to prevent real harms. This bill would require disclosure of funding for a study to be included in a comment submitted to an agency. This would identify the amount and source of funding and whether there were any behind-the-scenes reviewers and editors. Similar disclosure rules would be required for all studies submitted that are not peer-reviewed. Further, agencies would need to publicly disclose studies and research submitted during a rulemaking that present a conflict of interest, defined as receiving 10% or more of the funding from an entity under the agency’s jurisdiction or where such an entity conducted, reviewed, or revised the study. Agencies could, justifiably, ignore any study that was submitted without the appropriate disclosures.
Streamlines White House Regulatory Review. Another key reform included in the EXPERTS Act is that it would shine a light on the U.S. Office of Information and Regulatory Affairs (OIRA), the White House office long called the “black box” of the rulemaking process. When a rule is sent to OIRA for regulatory review, there is a real possibility it will disappear or will reappear substantially weaker than when submitted by the drafting agency. And there are typically no requirements for disclosing changes made during the OIRA regulatory review process. However, the EXPERTS Act would change this practice, requiring agencies to provide an outline of changes and identify whether the changes were made by OIRA, the agency, or another government official. If the agency withdraws a rule after sending it to OIRA, the agency would need to provide a detailed explanation and identify whether the request was made by OIRA or another government official. Moreover, the bill would limit OIRA review to 60 days, with one 30-day extension permitted. If OIRA were to miss this timeline, the agency would be able to move ahead with publishing the rule without waiting for affirmative clearance.
Overturns Ideological U.S. Supreme Court Precedent. The EXPERTS Act would directly overturn two Supreme Court cases that upended the federal regulatory process – Loper Bright Enterprises v. Raimondo and Corner Post v. Board of Governors of the Federal Reserve System. In Loper Bright, the Court overruled a 40-year-old decision that had established “Chevron deference,” the principle that reviewing courts should defer to an agency’s reasonable interpretation of an ambiguous statute. Under the Loper Bright holding, lower courts must now decide what they think is the best reading of a statute, even when it calls for policy expertise best handled by an agency’s subject-matter experts. The EXPERTS Act would respond by codifying Chevron deference, overturning the Loper Bright decision and ensuring courts defer to democratically accountable agencies.
In Corner Post, the Court held that the six-year statute of limitations typically applied to cases challenging agency rules does not begin to accrue for a person or entity until that person or entity is injured. This decision upended longstanding precedent that the statute of limitations began to run when the agency action was finalized. As a result, the Court has enabled regulations to be challenged in perpetuity by any new corporation or trade association. For example, any company can now challenge an endangered species designation issued by the U.S. Fish and Wildlife Service (FWS) or National Oceanic and Atmospheric Administration (NOAA) Fisheries Service, even decades after the species was first designated. This threatens extinction of the endangered species, undermining the congressional purpose in enacting the Endangered Species Act. The EXPERTS Act would reverse this problematic SCOTUS decision by codifying a six-year statute of limitation that begins to run at the time the agency action is finalized.
Public Citizen and its allies are proud to endorse this vital pro-regulatory legislation. We are grateful for the 69 members of Congress and 12 Senators who have joined as original cosponsors on this marquee bill. We’re looking forward to bringing more federal lawmakers on board and shepherding the federal regulatory system into a new progressive era.
Take action NOW to ensure your Senators and Representatives support this important legislation.