This week, it was reported that Senate Democrats plan to force a vote to confirm one judicial nominee to the D.C. Circuit Court of Appeals if Republican Senators continue to block the nominee’s confirmation. Patricia Ann Millett, who has worked for Democratic and Republican administrations in the past, is the contested candidate. Although the circuit court has three vacancies, the Republicans oppose a vote because they say the D.C. Court of Appeals has too many judges. Senator Jefferson Sessions, for example, is quoted as saying about the court, "They have, by far, the lowest caseload per judge. They take the summers off." Other than this political rhetoric, there is nothing to back up this claim. The Republican’s true objection is that, after the President fills the vacancies, the court will have more judges that will have been appointed by presidents who were Democrats than Republicans. But this is our constitutional system. If a party wins the presidency, the President gets to fill judicial vacancies and the Senate concurs unless the person nominated is not competent.
From the time the President announced his nominations to the Court back in June, Republicans have kept up a steady stream of misinformation about the need to fill the court. First they claimed that filling the court vacancies would amount to “court-packing,” a term that refers to an effort during the Roosevelt administration to add more judges to the Supreme Court -- not to eliminate existing seats, as the Republicans would like to do here. In addition, they were more than happy to fill the seats vacated during the Bush Administration.
Now they claim that the D.C. Circuit does not need as many judges as it current has. Senator Grassley has crafted legislation to permanently eliminate seats on the circuit court to preclude the possibility that the President can fill the existing vacancies. In the past, however, Congress has determined how many judges are needed in each of the federal circuit courts based on recommendations of the non-partisan Federal Judicial Center, which studies caseloads and makes its recommendations based on available empirical evidence. This is why Chief Justice Roberts has asked Congress to fill the vacancies on the D.C. Circuit. As Chief Justice, he is the head of the Center and he is acting on its recommendations. In fact, the average caseload for the Court is up, from 119 cases in 2005 to 188 cases this year. The cases before the Court are also more complex than other circuits because it reviews cases involving complicated regulations adopted by agencies. It would be a shame if decisions about the number of judges in each circuit, one of the few remaining vestiges of non-partisanship left in Congress— were wiped out by Republican partisanship.
Why are the Republicans talking through their hats? The answer lies in the D.C. Circuit's unique jurisdiction over environmental, health, safety and other regulations, which gives it a particularly important role in the federal judiciary. For years, the circuit court has had more judges appointed by Republican presidents than presidents who were Democrats. Now that President Obama has won reelection, and can change the balance, the Republicans are no longer willing to fill the vacancies that they were only to happy to fill when it was a Republican president who was choosing the nominees.
The American people deserve better and are not falling for the Republicans’ hot air. Editorials from local papers across the country have come out in support of filling the Court’s remaining seats. Senator Grassley’s own local paper the Daily Iowan notes:
Unlike the attempted 1937court-packing power grab by Roosevelt, Obama is not seeking to create new seats on the Court of Appeals to tilt the court’s partisan balance in his favor. Obama seeks only to fill judicial vacancies in accordance with his Constitutional job description.... Grassley argues that the court’s relatively low caseload requires such a reduction in seats, but an April report from the nonpartisan Judicial Conference of the United States, a group led by Roberts, recommended keeping the number of judges on the D.C. court at 11. The actions and the rhetoric of Grassley and the rest of his Senate partisans smack ultimately of obstructionism.
The argument that we should move seats from this circuit to other circuits because the Court is "not busy enough" is laughable at best and deeply cynical at worst. The Republican Senators simply cannot accept that their party lost the election, and they are prepared to stall judicial nominations until they win again, no matter the cost to the country or the Constitution.Full text
In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, has been substantially weakened — the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation.
Congress is now considering competing bills to fix one part of this framework—the Toxic Substances Control Act (TSCA), the principal statute governing federal regulation of toxic chemicals. The two bills—the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA)—both fall short of what is needed to fix TSCA, albeit to a widely varying degree—while weakening the civil justice systems and state regulation even more.
To be sure, TSCA reform is overdue. The statute’s inadequate data-gathering provisions have prevented the Environmental Protection Agency (EPA)—the agency charged with implementing TSCA—from obtaining critical information on the potential hazards of the tens of thousands of chemicals currently on the market. And even when the EPA is able to confirm that a chemical is dangerous, TSCA provides the agency with little authority to take meaningful action to protect against the health or environmental risks the substance poses.
While neither of the two leading TSCA reform proposals—the SCA and the CSIA—do enough to strengthen federal regulatory public protections against toxic chemicals, the CSIA would take a significant step backwards by effectively eliminating the two other parts of the framework—the state and federal civil justice systems and state regulation. The CSIA would preempt state and federal tort law by granting partial immunity to industrial chemical manufacturers and users whose activities have been deemed “safe” by the EPA. The CSIA would also broadly preempt state efforts to request that manufacturers supply data regarding their chemicals and prohibit state and local governments from regulating a particular chemical in any way once the EPA has prioritized that chemical for further assessment.
Center for Progressive Reform Member Scholars Emily Hammond, Thomas McGarity, Wendy Wagner and CPR Senior Policy Analyst James Goodwin and I have written a CPR Issue Alert that seeks to explain how each part of the three-part protective framework contributes to reducing the risks posed by chemicals, and we recommend ways that TSCA reform can strengthen all three parts of the protective framework.
As indicated by the 20th anniversary of Executive Order 12866, which guides the workings of the Office of Information and Regulatory Affairs (OIRA) at OMB, OIRA has become a fixture of the regulatory landscape. OIRA review of proposed rules is problematic, as other blogs in this series have indicated. In the Obama administration, however, this is an additional problem. Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration. This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations. When this happens, OIRA’s regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made.
There is an old saying that in government “where you stand depends on where you sit.” That is, your view of the world is formed by the institutional arrangements in which you work. White House officials are sensitive to public policy arguments based on expertise, but they also more concerned than their agency counterparts with the political ramifications of such decisions. The White House may seek to control a regulatory outcome to obtain good public policy, but it may also seek to do so to curry favor with political donors or to forestall potential political attacks on the President. Since agency administrators are not running for office, they and their staffs do not share these political concerns (except indirectly in response to pressure from the White House or Congress.)
Call it buyer’s remorse. The Office of Advocacy of the Small Business Administration (SBA) is publicly—albeit meekly—tiptoeing away from a now-infamous report that it commissioned, in which economists Nicole Crain and Mark Crain purported to find that federal regulations cost the economy $1.75 trillion in 2008. After being roundly criticized by CPR, the Congressional Research Service, and others, SBA’s Office of Advocacy now explains, referring apparently to the $1.75 trillion figure that “the findings of the study have been taken out of context and certain theoretical estimates of costs have been presented publicly as verifiable facts.” While this admission is welcome, it does not go nearly far enough in light of the antiregulatory crusade this misleading, taxpayer-supported report fueled.
Soon after the Crain and Crain report was released in 2010, CPR published a White Paper that demonstrated the unreliability and implausibility of the Crain and Crain report’s methodologies and findings. A few months later, the nonpartisan Congressional Research Service (CRS) released its own analysis of the Crain and Crain report, and its findings were equally damning. Then the Economic Policy Institute (EPI) separately analyzed the Crain and Crain report, and concluded the Crain and Crain report was based on a “flawed economic model and faulty data.” All of this caused then Administrator of the Office of Information and Regulatory Affairs (OIRA) to describe the study as “deeply flawed” and an “urban legend” in congressional testimony. And in addition to employing indefensible methodologies to support their calculations for costs, the Crain and Crain report’s authors ignored regulatory benefits, a move that ensured that the report’s findings would be ripe for precisely the kind of abuse and misuse by anti-regulatory forces that SBA’s Office of Advocacy is now trying to walk away from.
Sure enough, the fantastical $1.75 trillion dollar estimate has been cited time and time again by industry lobbyists and regulatory criticsin Congress, even after the report itself had been debunked, to support troubling anti-regulatory legislation, such as the REINS Act. After handing this Christmas gift to the anti-regulatory forces, SBA’s Office of Advocacy owes the public something more than burying a begrudging acknowledgment of the report’s weakness on an obscure webpage.
When I wrote Dr. Winslow Sargeant, the head of the SBA Office of Advocacy, asking that his agency completely disavow the Crain and Crain report, he offered a disappointing response that attempted to rehabilitate the Crain and Crain report’s findings and methodology. So, it is encouraging that the SBA Office is now being a little more forthright in its criticisms of the report. Yet, the Crain and Crain report has so polluted the public debate over regulatory policy that this half step by SBA’s Office of Advocacy is plainly inadequate. It is time for the agency to disavow the report completely, remove any vestige of it from its website, and adopt procedures to ensure that it does not pay for and publicize similarly misleading research again. As a fiduciary of the public’s money, it owes nothing less.Full text
The confirmation hearing for Howard Shelanski, President Obama’s pick to serve as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) is set to take place Wednesday before the Senate Homeland Security and Government Affairs Committee. If confirmed, Shelanski would become the Administration’s new “Regulatory Czar,” a description that indicates the significant influence OIRA’s administrator has concerning what agency rules look like and, indeed, whether those rules are issued at all.
Shelanski’s confirmation hearing comes at a crucial juncture in the Obama presidency. Progress on many important rules has been halted, including the EPA’ rule to limit greenhouse gas emissions from future power plants. Of the 139 reviews currently pending at OIRA, 71 are beyond the 90-day limit set by Executive Order 12866. A number of rules have been under review for a year or even two years. If the President is to live up to his promise in his first post-election State of the Union address to take decisive action on pressing issues such as climate change, OIRA will have to change its tune. We will be listening during the hearing to see whether Shelanski is prepared to finish up regulations that are necessary to protect the public and the environment, rather than continuing the tortoise-like review process that has characterized the President’s first term. The answers to the following questions will provide the answer:
Will Shelanski ensure the quick completion of reviews for rules that have been stuck at OIRA for well beyond the 90-day limit in Executive Order 12866? Senators should ask about the many rules that are pending at OIRA, such as the EPA’s Chemicals of Concern rule (stuck since May, 2010); the Department of Transportation’s Requirements for the Transportation Of Lithium Batteries (since October, 2010); the Occupational Safety and Health Administration’s (OSHA) Silica rule (since February, 2011), OSHA’s Injury and Illness Recording Requirements (since November, 2011); the National Highway Traffic Safety Administration’s Rearview Camera rule (since November, 2011 despite a legislative deadline of February, 2011); and the Department of Energy’s Federal Building Standards rule (since December, 2011).Full text
In the old television series, "Cheers," barfly and braggart Cliff Clavin was a guy who was forever "talking through his hat," offering up an endless supply of ridiculous factoids and explanations. Cliff made for good television, but the same cannot be said for the Senate Republicans who seem to be borrowing his approach. That's what's at work with the Republican effort to block President Obama’s nomination of three distinguished lawyers to fill longstanding vacancies on the D.C. Circuit Court of Appeals by eliminating the open positions. The GOP claims the appointments are unnecessary because the circuit doesn’t need the judges – describing the nominations as “court packing.”
What utter nonsense! Even Cliff Clavin would blush at the argument! It's so absurd that I can't imagine even the Republicans believe it. The obvious reason that the GOP opposes the nominations is that filling these long-vacant seats will mean that more judges on the court will have been appointed by Democratic presidents than Republican ones. That, of course, is what happens when we have elections. In that sense, the opposition is more than nonsensical; it is an effort repeal the system established by the Constitution for the appointment of judges.
Let's dispense with the merits — to use the term loosely — of the GOP's argument. Statistics from the Federal Judicial Center indicate that there were an average of 1,152 cases pending (not yet decided) in the D.C. Circuit during the eight years of the Bush administration. The same average for the four years of the Obama administration is 1,362 pending cases. (A comparison of the last four years of the Bush administration and the first four of the Obama administration reveals a similar result: an average of 87 fewer pending cases in the Bush administration.) Moreover, because no nominations have been confirmed to the court since 2006 (until last month), the number of pending cases per judge has grown from 119 in 2005 to 188 today. By the way, in defense of history, the phrase “court packing” refers to an effort during the Roosevelt administration to add more judges to the Supreme Court – not to eliminate existing seats, as the Republicans would like to do here. The Republicans were happy enough to fill five existing vacancies on the D.C. Circuit when George W. Bush was President , even though, as noted, the workload was about the same or lighter than it is now.Full text
Today, President Obama announced three nominations to the D.C. Circuit Court of Appeals. The President nominated law professor Cornelia T.L. Pillard, appellate lawyer Patricia Ann Millett and federal district judge Robert L. Wilkins to the Court. The Court has had many longstanding vacancies, including one slot that was filled when the Senate confirmed Sri Srinivasan for the post in late May. If confirmed, the President's new nominations would fill all remaining vacancies. Below is Center for Progressive Reform Member Scholar Sidney Shapiro's response to the nominations:
The President's nominations to the D.C. Circuit Court of Appeals are long overdue. The D.C. Circuit's unique jurisdiction over environmental, health, safety and other regulations gives it a particularly important role in the federal judiciary. But over the past several years, the Circuit Court's tilt to the right has made it the court where needed regulatory safeguards go to die. The President's nominations would likely restore some balance to the court, and that is precisely why Senate Republicans appear poised to launch an all-out effort to delay and obstruct these nominations. The American people deserve better. The argument that we should move seats from this circuit to other circuits because the Court is "not busy enough" is laughable at best and deeply cynical at worst. The Court plays a crucially important role in ensuring that regulations that protect our air and water, and keep our food supply safe are based in sound science, free of political interference, and consistent with statute. President Obama's nominations bring us one step closer to that realization.Full text
Rep. Tammy Duckworth appears to have been caught up in the anti-regulatory fervor that has continued to afflict the House of Representatives ever since the GOP took control there in 2010. On Monday, Representative Duckworth, an Illinois Democrat, announced a plan to address what she said was a problem: “For businesses with less than twenty employees, the annual cost of federal regulation can be over $10,000 per worker.” But before we get to the proposed solution, there’s a problem with the stated problem: it’s just not true. The stat comes from the 2010 “Crain and Crain” study commissioned by the Small Business Administration’s (SBA) Office of Advocacy, a study that has been thoroughly debunked in a CPR white paper, by the Congressional Research Service, EPI, and others. Fully 70 percent of the study’s cost estimates came from a regression analysis based on opinion polling about perceived regulatory climate in different countries.
Having aired a faulty claim of a problem, Rep. Duckworth introduced a bill ostensibly aimed at fixing it, by reducing small business reporting burdens. The bill, the Small Business Paperwork Relief Act, would bar federal agencies from fining “small businesses” for first-time violations of federal reporting requirements when certain conditions are met, significantly curtailing agencies’ discretion in ensuring compliance with these requirements while providing little benefits to true small businesses. Last term, identical bills were introduced in the House by Rep. Charles Boustany and in the Senate by Sen. David Vitter; Senator Vitter reintroduced the Senate bill in January.
I put the term “small businesses” in quotes, because the definition of that term in Duckworth’s bill is a far cry from what most of us envision when we think of small business. For this definition, the bill simply uses the small business size standards developed by the SBA. As documented in a recent CPR white paper, the SBA defines small business rather broadly; they aren’t just limited to the “mom and pop” stores lining Main Street in Small Town, USA. Instead, SBA counts petroleum refineries with up to 1,500 employees and chemical manufacturing plants with up to 1,000 employees as small businesses. While such facilities may be relatively “small” for their economic sectors, it defies credulity that such operations lack the resources and sophistication to fill out reporting requirements correctly.Full text
Congress created the Office of Advocacy (Office) of the Small Business Administration (SBA) to represent the interests of small business before regulatory agencies. It recognized that, unlike larger firms, many, if not most, small businesses can’t afford to lobby regulators and file rulemaking comments because of the expense involved. The Office was supposed to fill this gap by ensuring that agencies account for the unique concerns of small businesses when developing new regulations. Instead, as new reports from the Center for Progressive Reform and the Center for Effective Government document, the Office of Advocacy is using its resources and influence to weaken the regulatory process, usually at the behest of big business.
The Office of Advocacy has steadily expanded its role in the rulemaking process, creating numerous opportunities to oppose regulation, slow the regulatory process, and dilute the protection of people and the environment against unreasonable risks. Its activities are frequently undertaken in conjunction with corporate lobbies and trade associations that represent the interests of their large business members. Often, it is difficult to find even a sliver of sunlight between the positions taken by the Office and those taken by such prominent regulatory opponents as the big-business-focused U.S. Chamber of Commerce. It turns out that's not by accident: The Center for Effective Government’s report exposes emails between the Office and big business interests demonstrating that the Office takes its lead from big business lobbyists.
The Office of Advocacy bolsters its anti-regulatory efforts by sponsoring research projects with the obvious aim of weakening the U.S. regulatory system. Non-governmental researchers carry out these projects under contracts awarded by the Office with little in the way of oversight or peer review. At least in some cases, these "research" papers are thinly veiled political documents. The most egregious example is the 2010 study by economists Nicole Crain and Mark Crain, which purported to find that the annual cost of federal regulations in 2008 was about $1.75 trillion. As CPR and others demonstrated, the Office ignored serious methodological problems with the report, which rendered it implausible, apparently because the results fit with the Office’s anti-regulatory narrative.Full text
When the government succeeds in protecting the public from harms, is that good news – or something to be atoned for by eliminating other successful protections? If the Department of Labor issues a new rule on construction crane safety, saving dozens of lives each year, should the agency also be required to eliminate an existing safety regulation? A policy of regulatory “pay-go” would prohibit agencies from issuing new rules, no matter how beneficial they are, unless they first identify and eliminate an existing rule that involves greater or equal costs for industry.
It sounds absurd, yet it’s an actual proposal supported by some very powerful people, though it has received relatively little attention. Mitt Romney has pledged in his economic plan to implement such a system (p. 61) if he is elected President, even saying that he’d issue an executive order for it on his first day in office (p. 7). Senator Mark Warner has proposed creating such a system through new legislation, though he has not introduced a bill to do so.
In a new issue brief today, Regulatory ‘Pay-Go’: Rationing the Public Interest, CPR Member Scholar Richard Murphy, CPR Policy Analyst James Goodwin, and I examine the concept, showing how it would undermine the regulatory system’s ability to protect people and the environment.
The story of regulatory protections in the last several decades has been one of remarkable success. Our air and water, for example, are far cleaner, by many measures, than they were just decades ago, and that’s largely thanks to government rules. Regulations under the Clean Air Act alone save well over 100,000 lives every year. And vehicle safety standards have reduced the fatality rate per vehicle mile traveled by more than half in under three decades. Yet despite this progress, work remains in these areas and others: tens of thousands of Americans still die each year from industrial air pollution and from automobile collisions.Full text