What Should be Discussed at the Senate Homeland Security’s Hearing on the U.S. Regulatory System (But Probably Won’t)

A clock hangs in Room 342 of the Dirksen Senate Office Building—the room where tomorrow at 10:00 am the Republican leadership of the Senate Homeland Security and Government Affairs Committee will convene its first antiregulatory circus hearing of the new Congress.  Below that clock, the hearing will play out according to a now-familiar script:  the Republican members will cite vague constituent concerns about the regulatory system harming their families and businesses; the three industry shills invited by the majority will rehash the same tired and unsubstantiated arguments about how regulations are a drain on the economy; and, by the hearing’s end, a consensus will emerge among the Republican members and their hand-picked witnesses that drastic reforms of the regulatory system are in order.  Along the way, hands will be wrung, fists will be pounded, and vitriol will be spewed.  Something must be done, they’ll exclaim.  That something will assuredly involve more rulemaking procedures that would increase corporations’ already tight grip on the rulemaking process and more lookback procedures for existing regulations that will tie up agencies in knots and waste their dwindling resources.

Meanwhile that clock in Room 342, the one looming just over the Republican members’ heads, will keep ticking.  Tick tick tick.  As each second passes, the country's most pressing problems will remain unaddressed.  We’ll be no closer to securing funding for transportation infrastructure, which is due to run out in May.  We’ll be no closer to tackling the existential threat of global climate change or the stagnant wages that are holding back millions of American families.  Most astonishingly of all for the members of the Senate Homeland Security Committee, with each tick, we’ll be one second closer to a shutdown of the Department of Homeland Security set to take place this Friday when the agency’s funding officially expires.  Tick tick tick.

Frankly, the timing of this hearing couldn’t be worse for the congressional Republicans who are singularly responsible for the unnecessary game of chicken with the Department of Homeland Security’s funding.  But, if they are going to go through with it, at least they should endeavor to not make it a complete waste of everyone’s precious time.

The Republican committee members are right that the regulatory system is not functioning as well as it could, but their diagnosis of the problem—and the remedies they prescribe as a result—are grossly off the mark.  Over the last 30-plus years, the rulemaking process has become increasingly captured by corporate interests that are intent on avoiding any public accountability, including through compliance with any regulatory safeguards they find inconvenient to their bottom line.  For example, while the rulemaking process was intended to follow a pluralistic model in which agencies would develop new rules based on input from a variety of public stakeholders, industry has been able to leverage its superior resources to dominate these public input processes with the result of diluting and marginalizing the public’s voice.  While regulations are supposed to be grounded in the best available science, industry has succeeded in degrading the scientific method into something more reminiscent of “Calvinball,” manufacturing uncertainty to suit its own ends by keeping the rules of the game in a constant state of flux.

Here's just a sample of the real problems afflicting the U.S. regulatory system that should be discussed at tomorrow’s hearing, but won’t be:

• Restoring balance to the public input processes—including notice and comment—which industry now dominates to the near exclusion of the public interest;

• Addressing the problem of “information capture,” or industry’s tactic of overwhelming agencies with redundant, irrelevant, and incorrect “information” throughout the rulemaking process;

• Reversing the acute “ossification” of the rulemaking process by the addition of ever more procedural and analytical requirements that delay safeguards, waste resources, and provide industry with more opportunities to dominate the development of pending rulemakings;

• Rooting out the use of “blood sport” tactics to influence pending rulemakings—or strategies used by regulated industries and their conservative allies in government that exist outside of the traditional rulemaking process, including public relations campaigns, intense congressional hearings, and appropriations riders;

• Mitigating institutionalized political interference in rulemakings that is brought to bear through the White House’s non-transparent centralized regulatory review functions; and

• Insulating agency science against political and industry interference.

Without a doubt, adopting reforms to address these problems would help to restore the public interest as the central focus of the regulatory system, enabling agencies to carry out their statutory missions of protecting people and the environment in an effective and timely manner as previous congresses had intended.  Now these are serious problems that are well worth this congress’s attention.

But, the hearing will raise none of the issues, nor will it seriously entertain any viable solutions for them.  Instead, though, its Republican overseers will call for so-called reforms that ensure that these problems are further ingrained, and that by design the regulatory system continues to work for corporate interests at the expense of the public interest.

To the extent that tomorrow’s hearing follows this expected script, it will not be a great use of anyone’s time—even under different circumstances.  To anyone who is unfortunate enough to be stuck in Room 342 tomorrow morning, I urge you to look up at that clock and reflect, if only briefly, on what is and what could have been.