Senator Rand Paul (R-KY) and Congressman Geoff Davis (R-KY) have introduced Congressional legislation called the REINS Act, or Regulations From the Executive in Need of Scrutiny Act of 2011.
This Tea Party-corporate legislation is custom made to weaken health, safety and environmental protections while making a mockery out of our democratic process.
In order to advance greater understanding about the REINS Act, I address some of the frequently asked questions about the legislation here. (My colleague David Goldston also has written an excellent overview of the REINS Act.)
Q1. What is the REINS Act and what would it do?
A1. The REINS Act is legislation targeting public health, food safety, environmental, labor, health care, financial reform, and investor safeguards adopted by agencies to carry out Congressional laws. The REINS Act turns the constitutional democratic process for amending legislation upside down, by dispensing with the need for existing laws to be changed or overturned by majorities in the House and the Senate with presidential signature. Instead, the REINS Act would authorize either the House or Senate to void or block prior laws enacted by Congress when those laws are carried out by agencies through implementing regulations. The REINS Act also would eliminate the power of the president to stop such unilateral legislative vetoes by one chamber of Congress. If there is one thing to remember about the REINS Act, it is intended to block or void federal laws protecting public health, safety, welfare and the environment through fundamentally anti-democratic means.
Q2. How would the REINS Act allow legal safeguards adopted by prior majorities in the House and the Senate and signed by the president, to be blocked or voided by unilateral action of either the House or the Senate?
A2. The REINS Act blocks major legal safeguards and protections issued by agencies to carry out earlier Congressional laws unless those agency actions are reaffirmed by both chambers of Congress within 70 days of issuance, then signed by the president. (“Major” is defined to mean economic impacts of $100 million or more.) What this means is that it only takes one chamber of Congress to put down its foot and block or void the earlier law that promised the safeguards and protections; members of Congress can resort to obstruction and delay to prevent a vote of approval from even occurring in 70 days; or ordinary Congressional dysfunction and a busy legislative calendar could prevent safeguards from becoming effective.
Q3. Would the President be able to veto such unilateral Congressional action and allow the public health, safety, welfare or environmental safeguard to take effect?
A3. No. There would be nothing to veto. The REINS Act relies upon a diabolical stratagem called the unicameral legislative veto, meaning either the House or Senate could take out health and safety protections that disgruntled corporations and Tea Party activists despise with the single barrel of a double-barreled twenty gauge shotgun. Once that happens, the other chamber of Congress is powerless to resurrect the law, and nothing even reaches the president's desk to veto. The president would be powerless to enforce the laws of the land, because those laws would have been voided by the opposition, inaction or dysfunction of just one chamber in Congress.
Q4. What kinds of laws could the REINS Act block or void?
A4. Any major safeguards issued by agencies to carry out Congressional laws. This could include hundreds of existing laws and thousands of laws going forward, such as laws that prohibit pesticides in baby food and melamine in infant formula; laws that increase inspections for mad cow disease at meat processing plants; laws that reduce air pollution causing cancer and mercury and lead poisoning in children; laws requiring clean water standards at sewage treatment plants; laws increasing safeguards for workers in coal mines; laws enhancing safety standards at oil drilling platforms; laws prohibiting the sale of cigarettes to children; laws preventing discrimination against disabled Americans; laws prohibiting tainted pet food; laws protecting against E-coli and salmonella outbreaks in the food supply; laws barring discrimination against people with pre-existing health conditions; laws banning abusive mortgage lending practices; and laws prohibiting financial fraud by banks and investment firms against ordinary investors.
Q5. Who is supporting the REINS Act and why?
A5. Tea Party conservative activists and their allies in Congress who oppose public health, food safety, environmental, health care, labor, financial reform and other safeguards adopted by federal agencies to carry out Congressional laws. REINS Act supporters also include some corporations that would like to avoid compliance with these laws and force the costs, hazards and “externalities” of their businesses upon the public. The legislation is further supported by conservative-libertarian think tanks that espouse opposition to health, safety, welfare and environmental legal protections. For example, the Koch Brothers-backed Astroturf group, Americans for Prosperity, is a strong backer of the REINS Act.
Q6. Does the REINS Act apply to taxpayer-funded corporate welfare, like tax breaks to oil companies, subsidies to the nuclear industry, below-market loans to coal companies, bailouts to big banks, and other taxpayer handouts?
A6. No, of course not. REINS Act backers do not want to allow an obstructionist minority in Congress or one Congressional chamber to block tax dollars flowing to corporations. The REINS Act is designed to block laws that restrict corporate freedoms to pollute, commit fraud, cut corners and the like -- laws concerning environmental pollution, food and drug safety, discrimination, abusive labor practices, financial fraud, money laundering etc. Taxpayer subsidies to corporations enhance corporate freedom under the world views of REINS Act supporters; at any rate, the REINS Act's authors made sure corporate welfare and subsidies are not subject to scrutiny or reversal by the legislation.
Q7. So what’s wrong with existing laws being changed or blocked by the current members of Congress, following elections that express the most recent will of the majority of Americans?
A7. Nothing at all. Our democracy has always worked that way. Congress already has authority to change existing laws through amendments, or to block agency regulations using a statute called the Congressional Review Act. Both approaches just require majority votes by the Senate and the House, followed by presidential signature, the way all laws do and the Constitution provides. But REINS Act supporters cannot stomach that and want a more expedient way to kill safeguards. What is radically different and anti-democratic about the REINS Act is that it eliminates the constitutionally prescribed Senate and House majority votes and presidential signature. As explained, the REINS Act allows laws to be voided or blocked through opposition, inaction or dysfunction of just one Congressional chamber.
Q8. Why do REINS Act supporters feel like they should be able to get away with such an anti-democratic approach to void health, safety and welfare protections?
A8. REINS Act supporters include Congressional conservatives and special interests who boast that conservatives kicked butt in the last elections. They believe they earned a mandate to quash laws they don’t like without the bother of mustering tiresome majorities in the Senate and House, and then overcoming any opposition by the president. That’s precisely why the REINS Act is needed, in their view, to bypass all that cumbersome democratic “checks and balances” blah blah blah. The new conservative majority in the House entitles them to dispense with majority rule and old-fashioned democracy.
Q9. Let’s take an actual example. Both Congressional sponsors of the REINS Act are Republicans from Kentucky. Isn't it true that Kentucky's senior Republican Senator, Mitch McConnell, was one of the 89 Senators who voted overwhelmingly for the Clean Air Act Amendments of 1990 before President George H. W. Bush signed it? Wouldn't the REINS Act allow today’s very conservative House, acting unilaterally, to block Clean Air Act protections from being carried out by EPA to do exactly what bi-partisan groups of 89 Senators, 401 Representatives and the president wanted to happen when they adopted the law?
A9. Absolutely yes. And that’s exactly what that same conservative House did recently in an amendment to the Republican budget that attempts to block EPA standards to reduce mercury and other toxic pollution from cement plants. These standards carry out and enforce the 1990 Clean Air Act. But today’s Senate will never vote to block the EPA clean air standards, and if they did the president surely would veto such legislation. That’s precisely why REINS Act boosters believe the REINS Act is necessary – to allow anti-regulatory conservatives in the House to get their way when the Senate and President would stand in the way. REINS Act supporters believe it imperative to allow a more “enlightened” single chamber today to block or alter the will of earlier misguided Senate and House majorities and a president like George H. W. Bush that conservative activists consider a Republican in Name Only anyway.
Q10. Would the REINS Act allow a minority of Senators to filibuster a resolution to approve a health or safety standard, preventing a Senate majority from even considering that resolution for approval during the 70 days allowed for review?
A10. Yes. The REINS Act has been carefully crafted to make it appear like the legislation prohibits filibusters or other well-worn procedural obstruction tactics in the Senate. But as the saying goes, appearances can be deceiving. Senate rules and historic practices are both arcane and biased in favor of Senatorial prerogatives to obstruct through tactics like the filibuster. So the REINS Act takes full advantage of that complexity, and legal observers [pdf] believe that the legislation continues to allow filibusters.
Q11. How does the REINS Act promote Congressional accountability?
A11. The REINS Act makes members of Congress more accountable to the corporate benefactors that bankroll Congressional campaigns. Now members of Congress can deliver on their private promises to corporate lobbyists to void or block public health, food safety, environmental, financial reform, health care, labor, or other regulatory statutes on the books when federal agencies carry out those laws consistent with earlier Congressional directives. Through obstruction tactics, delays, filibusters, partisan bickering, the usual Congressional inactivity or blocking votes by just one chamber, members finally can be held accountable to corporations that want legal safeguards to suffer quiet deaths.
Q12. So when both chambers of Congress approve a resolution authorizing a major agency regulation, and that resolution is signed by the president, the major agency regulation then becomes law, correct?
A12. No. That is one of the real strokes of genius of the REINS Act. An obscure provision in the REINS Act makes sure that even though Congress has fully approved and ratified the agency regulation as written, opponents of the regulation still are given full permission to overturn the regulation in court for being unlawful. Really. It is through this drafting device that the REINS Act preserves its thorough accountability to corporate benefactors that fund Congressional campaigns. Corporations are afforded multiple bites at the apple to block or void health, safety, welfare and environmental protections.
Q13. Federal agencies are required by Congress to issue approximately 50 to 70 “major rules” each year on average to carry out federal laws. The REINS Act gives Congress only 70 days to consider and approve each of those major rules or else the rules are voided, agencies may not re-issue them, and the underlying laws are foiled. Finally, consider that Congress manages to pass only a dozen major bills each year, give or take. Is there any reason to believe Congress will even have the time, capacity and bi-partisan cooperation to consider, debate and approve 50 to 70 major rules during the REINS Act’s abbreviated time period?
A13. No. And that’s what lies at the heart of the cynical brilliance of the REINS Act. In the name of accountability (see Q.11 & Q.12), the REINS Act takes full advantage of Congressional dysfunction, partisan warfare, and procedural gimmicks to make the default outcome the blockage of public health, food safety and environmental protections. Today, the default outcome is that agencies are permitted to carry out existing laws that Congress instructed them to enforce unless opponents of safeguards can muster Senate and House majorities and presidential agreement to block those laws. For REINS Act boosters that sucks. So the REINS Act makes the default outcome the elimination of public health, food safety, environmental, labor, financial reform, and investor safeguards. Overcoming this presumptive fate requires Congress to get its act together 50 to 70 times every year, overcoming partisan dysfunction, obstruction, delay, corporate opposition, busy legislative calendars, and single chamber vetoes to allow these laws to protect the American people.
REINS Act supporters know that won’t happen -- and plan to make damn sure of it.