Dear Rep. McHenry

Yesterday, Public Citizen sent a letter to Rep. McHenry. Read the letter.  And, if the letter alone isn’t enough to give you a sense of why Public Citizen is appalled by the shenanigans of the House Oversight Committee this week . . . here is some more context, provided by Public Citizen’s new Congress Watch staffer Amit Narang:

This Wednesday’s House Oversight and Government Reform Subcommittee hearing was supposed to give Republicans a chance to grill OIRA head administrator Cass Sunstein, Obama’s so-called regulatory ‘czar’, and trot out once more their anti-regulatory agenda. Additionally however, the hearing gave the public the opportunity to see just how fundamentally misinformed many members are when it comes to the regulatory process and witness some particularly bizarre and downright hilarious remarks by the majority.

Early in the hearing, Subcommittee member Jason Chaffetz (R-Ut) expressed frustration that regulations were being proposed and implemented by agencies without enough Congressional involvement. What Rep. Chaffetz didn’t seem to understand (probably because he’s too worried about hunting:  is that the regulatory process can only begin when Congress has passed authorizing legislation. So, Congressional involvement is in fact primordial when it comes to regulation. Ideally, federal agencies then step in and use their expertise to figure out the best and most efficient way to put that legislation into action. This makes perfect sense when you consider the detailed, complicated, and highly technical work that writing effective regulations require. Sadly, the Republicans have introduced legislation to upend this very sensible regulatory structure: H.R. 10, The REINS Act, would require Congress to affirmatively vote to authorize any major rule proposed by the Obama administration within 70 days. Can you remember anything substantial that’s passed this Congress, or even the last, within 70 days?

Then, Chairman Darrell Issa got into the mix by asking why industries were having to comply with regulations that were still in the process of being studied by agencies and had not yet been finalized. Here, Issa demonstrated a fundamental misunderstanding of the different tools federal agencies have to work with private industries to help make sure they are in compliance. Agencies often use guidance documents to help advise private industry and other affected entities when small issues arise that weren’t addressed or envisioned by the regulation. Indeed, private industry has historically been in favor of guidance documents and it makes sense why: they quickly resolve pressing compliance issues for business and keep uncertainty to a minimum.

But Chairman Issa wasn’t done. He went on to press Sunstein about whether mining permits issued to mining companies during the Bush administration would be revoked under the Obama administration, perhaps because some of Chairman Issa’s friends in the mining industry would be affected. Sunstein claimed the question was out of his jurisdiction but left Chairman Issa the opening to claim permits granted in one administration should be honored in subsequent administrations. A fair point but a very hypocritical one for Chairman Issa because he is the lawmaker who late last year invited 150 trade associations, corporations and think tanks to provide their wish lists of public health, environmental and other public protections that they would like to see eliminated. Thanks in large part to Chairman Issa, the Obama administration asked agencies in Executive Order 13,586 to conduct “regulatory look-backs” where agencies would identify regulations enacted in previous administrations which could now be eliminated, potentially including some that are still essential safeguards. [AN1] . So it appears Chairman Issa wants to honor some things from previous administrations but not others.

In what was no doubt the most bizarre and hilarious moment of the entire meeting, Subcommittee Chairman James Lankford (R-OK) asserted that if they allowed the regulatory process to continue unabated, “we would all be wearing bubble-wrap suits when driving” in order to avoid loss of any life in car accidents. Although Rep. Lankford could have used a less preposterous example, the underlying point he was trying to make is still flawed. Rep. Lankford overlooks the fact that all major regulations are subject to a grueling and extensive implementation process established by law. One of the main features of this process is a robust cost-benefit analysis conducted by Cass Sunstein’s very own office which determines the necessity for a particular regulation by comparing the costs of putting that regulation into effect with the resulting benefits of the regulation once in place. Ironically, Cass Sunstein has justifiably been criticized for producing cost-benefit analyses that focus inordinately on costs while downplaying benefits but even a rudimentary cost-benefit analysis on Rep. Lankford’s “bubble-wrap” proposal would indicate that the costs would largely outweigh the incremental benefits (much to the chagrin of the bubble-wrap industry no doubt).