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REINS Act Opposition Displays Contempt For Consent Of The Governed


For decades, Congress has lost or ceded power to the myriad federal agencies and bureaucrats that comprise the administrative state. In response, this week a Senate committee started debate on the Regulations from the Executive in Need of Scrutiny (REINS) Act, a bill that would require agencies to get congressional approval of any new major regulation, roughly defined as those with an estimated economic effect of $100 million or more annually.

The bill, which passed the House in January, still faces a steep uphill climb. Only two Democrats joined House Republicans in voting for the REINS Act, and the bill is unlikely to get much support from Senate Democrats either.

Senators opposed to the bill are joined by a large coalition of left-leaning interest groups who have spoken out against this bill in particular as well as congressional Republicans’ broader aim to reassert some authority of elected representatives over unelected bureaucrats.

Turns Out the Left Dislikes Democracy

It is not hard to understand why groups like the Sierra Club, Natural Resources Defense Council (NRDC), League of Women Voters, and the AFL-CIO would oppose the REINS Act. While they have significant influence with office-holders, electoral fortunes wax and wane. Having the ear of influential and like-minded career civil servants, on the other hand, promises perpetual power.

Undoubtedly, groups from both sides of the aisle sometimes build cozy relationships with regulators and attempt to influence the rulemaking process. Thus far, however, left-leaning public interest groups and labor unions are the only ones who have publicly opposed the REINS Act. While pundits and social scientists focus much of their attention on “regulatory capture” by industry groups, the last eight years have furnished many examples of federal regulators’ preferential treatment of progressive public interest groups and unions as well.

A congressional investigation found that the NRDC was integrally involved in the writing of a far-reaching Obama-era Environmental Protection Agency regulation that would have treated carbon dioxide as a pollutant and imposed strict limits on its emission. Fortunately, the EPA’s authority to issue such a rule was questionable enough that the Supreme Court blocked its implementation. In another incident, the union-friendly Department of Labor imposed new reporting requirements on employer-side lawyers but not union-side labor lawyers, handing labor unions a significant advantage in disputes.

Many interest groups shape agency policy from the inside out by stacking organizational charts with former employees. Interest groups also get more than influence from friendly government bureaucrats. During Barack Obama’s tenure in office, the EPA awarded environmental groups more than $27 million in taxpayer-funded grants.

The Bureaucracy Operates on Leftist Principles

Liberal interest groups’ opposition to the REINS Act is not solely about strengthening their own organization’s connection to power. Their preference for bureaucratic discretion is deeply rooted in the political theory of turn-of-the-century progressives. According to progressive politicians like Theodore Roosevelt and Woodrow Wilson and public intellectuals including John Dewey and Herbert Croly, members of Congress were too myopically focused on their districts, too easily corrupted by special interests, and too partisan and inexpert to craft pragmatic, empirically supported policy.

In contrast, professionalized civil servants, trained in the emerging fields of social science, would have the common good at heart and the expertise to determine which policies best serve the public interest. Thus, progressive politicians sought to create an administrative state that could act independently of Congress and, thus, replace the political calculations of legislators with the scientific judgments of bureaucrats. As Dewey wrote in 1927:

The questions of most concern at present…are technical matters, as much so as the construction of an efficient engine for purposes of traction or locomotion. Like it they are to be settled by inquiry into facts; and as the inquiry can be carried on only by those especially equipped, so the results of inquiry can be utilized only by trained technicians. What had counting heads, decision by majority and the whole apparatus of traditional government to do with such things?

Modern activists share their forebears’ faith in bureaucratic expertise as well as their distrust of and impatience with democratic institutions. These resonances chime throughout the public statements of liberal interest groups opposed to the REINS Act like those below (emphasis added):

Sierra Club: “The process of crafting the safeguards that protect our air, water, and families is supposed to be governed by science and technical expertise, but these bills would ensure that it would all be driven by politics.”

NRDC: “The Act radically repositions Congress, the most political branch of government, as the place to make the ultimate decisions that involve detailed technical matters.”

League of Women Voters: “Supporters of this legislation claim it will check the overreach of the executive branch, when in reality, the REINS Act would replace the strengths of agency rulemaking with the weaknesses of the legislative process.”

The anti-democratic implications of these statements are hard to miss. Groups like the NRDC and League of Women Voters are essentially arguing that public policy is too important to be left to the public’s representatives.

That Pesky Little Thing Called Consent of the Governed

Legislatures may be more responsive to special interests than we would like, but elections do limit the degree to which legislators can ignore the people back home. Bureaucrats are not similarly constrained. According to the Sierra Club, for example, career civil servants are not “driven by politics.” They are not tethered to public opinion as legislators are.

According to activists, the public is fallible, fickle, and decidedly uninformed; the public’s perception is tainted by base self-interest, misinformed by clever PR gurus and advertisers, and tinged by unfounded dogmas and magical thinking

When bureaucrats are empowered to act with or without the public’s consent, interest groups can bypass the lumpenproletariat, getting out in front of public opinion rather than wasting precious moments waiting for the scales to fall from their eyes. Instead of debating policy alternatives with ideologically opposed factions, as legislators are obliged, career civil servants can act on the consensus views of experts in their policy space. As Phaedra Ellis-Lamkins, the CEO of environmental group Green for All opines, “getting bogged down in ideological debates over the role of government is frustrating and regressive.”

By requiring congressional approval for major regulations, the REINS Act threatens this arrangement. If passed, it will cut special interests’ influence, leaving them to fight for Congress’s attention and the public’s approval.

Relying on Congress to do its job—namely, taking the lead in the policymaking process—is a gamble, to be sure. The legislative process is slow. Legislators are generalists rather than subject-matter experts, just as progressives claim. Big donors do enjoy access to members of Congress that the average citizen does not.

But executive branch regulators are subject to biases and blind spots of their own. Also, unlike members of Congress, when they drift too far from the public there is no way to boot them from the beltway. A powerful and autonomous administrative state might be advantageous for interest groups whose agendas are out of line with the public will, but it is bad for democracy.