Hiding the Ball: the Proposed Regulatory Accountability Act & Restricting Agency 'propaganda'

• Publication year: 2019

Hiding the Ball: The Proposed Regulatory Accountability Act & Restricting Agency 'Propaganda'

Benjamin A. Torres
University of Georgia School of Law

HIDING THE BALL: THE PROPOSED REGULATORY ACCOUNTABILITY ACT & RESTRICTING AGENCY 'PROPAGANDA'

Benjamin A. Torres^*

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The Senate's Regulatory Accountability Act (RAA) seeks to substantially amend the Administrative Procedure Act, the law governing federal agency processes. The bill's sponsors argue, in part, that the RAA would improve administrative transparency and accountability. One of the least-discussed provisions, § 3(c)(6), "Prohibition on Certain Communications," would prohibit agencies from advocating for or against a proposed regulation during the comment period, an indispensable component of notice-and-comment rulemaking that affords the public a voice in the rulemaking process. This Note recommends that agencies should be able to exhibit their preferences at all stages of rulemaking, because, as policymakers, agencies should inform the public of their goals, purposes, and methods, as well as defend their reasoning in the face of the potentially dominating narratives of regulated industries. If left uncensored, agencies could also use the Internet to mitigate some of the public participation costs of commenting and increase public participation in the rulemaking process. This Note suggests that § 3(c)(6) runs counter to the RAA's broad justifications of increasing administrative transparency and accountability.

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Table of Contents

I. Introduction..........................................................................685

II. The Current Landscape......................................................687

A. THE APA AND SECTION 3(C)(6) OF THE REGULATORY ACCOUNTABILITY ACT...................................................688
B. NOTICE AND COMMENT RULEMAKING.............................690

III. Agencies Should Be Able To Exhibit Their Preferences During a Rule's Comment Period........694

IV. Conclusion..........................................................................698

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I. Introduction

On April 26th, 2017, the Regulatory Accountability Act of 2017 (RAA) was introduced in the Senate.¹ Amid a swelling sea of administrative governance, the Act aims to substantially amend the Administrative Procedure Act of 1946 (APA)² —the "quasi-constitution" governing federal agencies.³ In the twenty-first century, this administrative "fourth branch" of government has become increasingly difficult to reconcile with an already at-capacity three-branch system, frustrating elemental schemes like separation of powers and checks and balances.⁴ What's more, the Supreme court has been left to its own devices in interpreting the APA and has been forced by congressional silence to devise a repertoire of administrative common law.⁵ But within two weeks of the 115th Congress's first session, Congress signaled the coming end of its dormancy.⁶

The RAA would make several controversial changes to the administrative framework. Advocates say it would "result in a more transparent, accountable regulatory process that would yield more effective regulatory outcomes for American businesses, workers, and their families," specifically by: (1) compelling more cost-benefit analyses in promulgating regulations; (2) improving transparency and accountability; (3) providing certainty for businesses and

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consumers; and (4) creating an automatic review process for major regulations.⁷ Senator Heidi Heitkamp, the bill's co-sponsor, argues "there are good programs that can get bogged down in unnecessary red tape, burdening small business owners or farmers,"⁸ and that the RAA would help to cut that tape.

But not everyone is convinced the RAA would liberate agencies from unnecessary red tape. Some allege it would establish more superfluous stipulations for agency rulemaking.⁹ For example, when faced with an earlier version of the RAA, the Obama Administration threatened to veto it, warning the law would "impose layers of additional procedural requirements that would undermine the ability of agencies to execute their statutory mandates and that these unnecessary procedural steps seemed designed simply to impede the regulatory development process."¹⁰ Fears about the RAA's superfluity seem well-founded. In particular, the Senate's version of the bill would require agencies to adopt the most cost-effective approach of a proposed rule, to disclose all information relied upon in promulgating rules, and it would create an automatic review process for major rules and compel formal hearing procedures for "high-impact" rules.¹¹

Of the agency-shackling provisions in the RAA, one of the least-discussed is Section 3(c)(6), "Prohibition on Certain Communications." This provision would prohibit agencies from advocating for or against a proposed regulation during the comment period for that regulation.¹² The comment period is an indispensable component of notice-and-comment rulemaking, which is the least-encumbered method for agencies to promulgate regulations.¹³ The process for notice-and-comment rulemaking is simple. An agency must merely provide notice of the proposed rule and implement a

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period whereby "interested persons" (basically anybody) can comment on the proposed regulation.¹⁴ In implementing a rule's final version, the agency must consider all relevant comments.¹⁵ But there is a significant disparity in the number of meaningful comments produced by regulated entities (i.e. large industries) and regulatory beneficiaries (i.e. the general public). As will be discussed, this is partly due to the high costs of discovering the mere existence of agency regulations, understanding the complex administrative rulemaking framework, and generating meaningful comments.

In the wake of the social media revolution, some federal agencies, like the Environmental Protection Agency (EPA), have become increasingly active during a rule's comment period. These agencies appear to be motivated to educate and inform the public on the agency's stance regarding proposed regulations and to combat social media assaults from regulated industries. For example, the EPA recently engaged in a social media skirmish instigated by the American Farm Bureau. The Bureau had urged its followers to #DitchTheRule—an attack against the EPA's proposed Clean Water Rule limiting water pollution.¹⁶ Section 3(c)(6) of the RAA would prevent the EPA from responding to such attacks, rendering it silent in the face of campaigns waged by regulated industries. Additionally, by prohibiting agencies from advocating during a rule's comment period, § 3(c)(6) would foreclose avenues for ordinary citizens to explore the agency's side of the debate, suppressing their ability to come to a fully-informed decision in generating comments. Censoring agencies during the notice-and-comment period undermines the RAA's dual objectives of increasing agency transparency and giving the public a greater voice in rulemaking.

II. The Current Landscape

To consider the implications of § 3(c)(6) of the RAA, it is first necessary to place it within the context of the APA. More

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specifically, it is important to understand the interplay between notice-and-comment rulemaking under the APA, the Senate's RAA, and recent trends in information dissemination by agencies in the digital era.

A. THE APA AND SECTION 3(C)(6) OF THE REGULATORY ACCOUNTABILITY ACT

The Founders could not have foreseen the rise of the administrative state, and did not plan for it.¹⁷ The APA was thus Congress's post hoc attempt to safeguard federally regulated industries from "poorly conceived agency policies," while protecting those agencies from "judicial usurpation."¹⁸ Over the past seven decades, the APA has attained a quasi-constitutional status, amended only sixteen times and necessitating frequent judicial interpretation in the absence of congressional clarification.¹⁹ Lacking Congress's guiding hand, the Supreme Court brought forth a capacious body of administrative common law, which included doctrines like Vermont Yankee and Chevron.²⁰ But, as the late Justice Scalia noted, Chevron failed to cite the APA at all, advancing the suspicion that the judiciary unfaithfully commandeered the administrative state.²¹ One scholar even opined that "when courts impose rules of administrative law that stretch the APA's text beyond its breaking point, those rules . . . cannot be considered legitimate."²² To make matters worse, it was unclear whether

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congressional silence amounted to congressional acquiescence of the Supreme Court's administrative jurisprudence.²³

But Congress broke its silence. On January 11th, 2017, just two weeks into the 115th Congress's first session, the House of Representatives indicated its stance by passing its Regulatory Accountability Act in an effort to "substantially amend[] the APA."²⁴ And on April 26th, 2017, another iteration of the Act was introduced into the Senate.²⁵ The Senate's RAA would be the most significant reform of the APA since its inception in 1946.²⁶ Among its most notable changes, the RAA would instruct agencies to follow more than sixty new procedures in promulgating regulations and would compel formal trial-like hearings for "high-impact" rules, even amid the prevailing perception that formal rulemaking "has been all but relegated to the dustbin of history."²⁷

Senator Rob Portman, the bill's co-architect, announced on his website that the RAA would "create[] more jobs [and] raise[] wages" by: (1) promoting greater transparency by inviting the public to comment on rules before the rulemaking process even begins; (2) requiring agencies to adopt the most cost effective regulatory alternative; and (3) requiring more process for high-impact rules.²⁸ While the senator touts the support of several workers, farmers, ranchers, and "small businesses,"²⁹ his website nearly exclusively cites the support of...